YET ANOTHER UPDATE ON VACCINATION MANDATES

Posted On November 18, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

November 18, 2021

 

Yes, we have yet another blog on the current status of the federal vaccination mandates.  Our previous blogs on this topic can be found here, here  and here.

Here are some key updates and links to important resources.

  • On Friday, November 12th, the 5th Circuit Court of Appeals, as we previously reported here, issued an order continuing the temporary stay of the OSHA Vaccination and Testing Emergency Temporary Standard (“ETS”) pending further judicial review.  The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order."
    • As a refresher, the OSHA ETS, published November 5th in the Federal Register, required private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022. The applicable ETS is here.
    • The 5th Circuit’s opinion continuing the temporary stay can be found here.
  • Then, OSHA announced that it is suspending “activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
    • OSHA’s statement can be found here.
  • On the afternoon of November 16th, the Judicial Panel of Multidistrict Litigation, based upon a random selection, announced that the 6th Circuit Court of Appeals (which typically presides over disputes arising in Ohio, Michigan, Tennessee and Kentucky) will decide, in one consolidated action, challenges to the OSHA ETS.
    • The November 16th consolidation order can be found here.

Now what?

  • The fate of the OSHA ETS is undetermined. Right now, and as we previously reported, the stay is temporary. But, OSHA is standing down on enforcing the ETS until the courts resolve. If you are an employer subject to the OSHA ETS, you should consult with your attorney on next steps.
  • Regardless of the outcome of the OSHA ETS, nothing prevents employers from voluntarily implementing a mandatory vaccination and/or testing policy.
  • The OSHA ETS stay has no impact on employers subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers which we discussed here.
  • The OSHA ETS stay has no impact on federal contractors or subcontractors subject to Executive Order (“EO”) 14042 which we previously discussed here.
  • Therefore, employers subject to the IFR and EO 14042 must move forward with their mandatory vaccination requirements.
    • The deadline for federal contractors to get vaccinated is pushed back to January 18, 2022, per an updated Guidance from the Safer Federal Workforce Task Force which can be found here.

Don’t worry, we know this is changing quickly. We are monitoring and will continue to keep you posted!

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

3 FEDERAL VACCINATION MANDATES – WHICH ONE APPLIES TO YOUR BUSINESS?

Posted On November 15, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

November 15, 2021

 

By now, you and most employers have heard about OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) which requires private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022.  Our updates on this can be found here and here. The applicable ETS is here.

BUT not all private employers, even those with 100 employees or more, are subject to the OSHA ETS. Instead, they may be subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers or Executive Order (“EO”) 14042 applicable to federal contractors or subcontractors. If a workplace is already covered by EO 14042 or the IFR, the OSHA ETS will not apply.

Even though the ETS, EO, and IFR all contain vaccination mandates, each have important differences and specific requirements. But, the vaccination deadline for all three is January 4, 2022.

OSHA ETS

We previously reported here that on November 6, the 5th Circuit Court of Appeals issued a temporary stay of the OSHA ETS.  As we were writing this blog, on November 12, the 5th Circuit issued another order continuing the temporary stay of the OSHA ETS pending further judicial review.  (No rest for the weary! ) The opinion can be found here.  Also, check out the links below for additional information on the stay and the Court’s opinion.

This stay will not impact the vaccination mandates contained in the EO and IFR.  And as we previously advised, employers subject to the ETS should continue to plan for compliance as the stay is temporary.

Out of the three mandates, only the OSHA ETS permits regular testing instead of a mandatory vaccination policy. The OSHA ETS clearly permits employees to receive reasonable time, including up to four hours of paid time to receive each vaccination dose and reasonable time and paid sick leave to recover from vaccination side effects.

OSHA ETS also provides that employers who do not comply with the vaccine or paid time off requirements may face fines of up to $14,000 per violation, which is not contained in the IFR or EO.

The OSHA ETS specifically provides that it will not apply to workplaces already covered by the IFR or EO 14042, so read on!

CMS Interim Final Rule

What is it?

On November 4, 2021, CMS issued the IFR requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022.  For more information see: Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House.

As noted above, the IFR does not provide a testing alternative for unvaccinated staff.

What Entities are Subject to it?

  • Here is a list of the facilities subject to the IFR:

    ● Ambulatory Surgical Centers (ASCs) ● Hospices ● Psychiatric residential treatment facilities ● Programs of All-Inclusive Care for the Elderly (PACE) ● Hospitals ● Long Term Care Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes ● Intermediate Care Facilities for Individuals with Intellectual Disabilities ● Home Health Agencies ● Comprehensive Outpatient Rehabilitation Facilities ● Critical Access Hospitals ● Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services ● Community Mental Health Centers (● Home Infusion Therapy (HIT) suppliers ● Rural Health Clinics Federally Qualified Health Centers ● End-Stage Renal Disease (ESRD) Facilities

  • The IFR does not apply to religious nonmedical healthcare institutions, organ procurement organizations portable x-ray supplies, assisted living facilities, physician’s offices, group homes or home- and community-based services.

Who Must be Vaccinated?

All healthcare employees working at one of the covered facilities described above-- regardless of whether they work in a clinical or non-clinical position.  The IFR doesn’t just apply to employees but also students, trainees, contractors, and  volunteers and any other “staff” with direct or indirect patient contact.   

Are there Exclusions?

The IFR excludes workers who exclusively perform telehealth or support services outside the facility or who have no in person contact with patients or other staff.

Are there Exemptions?

The IFR permits exemptions based upon a  disability, medical condition, or sincerely held religious belief but in doing so, covered entities must ensure they minimize the risk of transmission of COVID19 to at-risk individuals, “in keeping with their obligation to protect the health and safety of patients.”    

The IFR also requires that an independent licensed practitioner acting within the scope of his or her practice, sign and date medical exemptions and provides,

Such documentation must contain all information specifying which of the authorized COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID-19 vaccination requirements based on the recognized clinical contraindications.

Are there Tracking Requirements?

The IFR requires that providers and suppliers create a process to collect, evaluate, and  track exemption requests including keeping secure documentation on the request, the decision, and any resulting accommodations.

Are there penalties for noncompliance?

The IFR states that non-compliance may result in civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement.  It does not provide a specific penalty amount.

EO 14042

What is it?

On September 9, 2021, the White House issued EO 14042, and on September 24, 2021, a corresponding Guidance requiring employees of certain federal contractors and subcontractors to be fully vaccinated.  Testing is not available as an alternative. The EO also contains masking and physical distancing requirements and a designated person to coordinate COVID-19 workplace safety.

Initially, the EO required employees to be fully vaccinated by December 8, 2021, but on November 4th, the White House announced a January 4, 2022 deadline.

What Contractors Are Covered?

We hope you already know if your company is a covered federal contractor but here’s the rundown.  The covered contracts are:  (1) for services, construction, or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions under the Service Contract Act; or (4) in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The EO generally applies to federal prime contractors and subcontractors, even if they are small businesses, as follows:

  • new contracts to provide services to the federal government on or after November 14, 2021;
  • extensions/renewals after October 15, 2021, of existing contracts for services to the federal government; or
  • when elected in contracts agreed to between October 15-November 13, 2021.

Who Must be Vaccinated?

Any full-time or part-time employees working in connection with a covered contract, or at a covered contractor workplace. In other words, virtually all employees working for a covered federal contractor or subcontractor.

Are there Exclusions?

The EO does not provide an exception to remote workers on the vaccination requirement.

The EO provides a limited vaccination exception for employees beginning work on a “urgent, mission-critical need.”  In such situations, the unvaccinated employee must become fully vaccinated within 60 days after beginning the work and the employer must comply with masking and physical distancing requirements.

Are there Exemptions?

Like the ETS and IFR, the EO permits disability, medical, or religious exemptions as permitted under applicable law.

Are there penalties for noncompliance?

The Executive Order and Guidance do not address penalties for employer noncompliance.

Additional Resources

BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS (ohioemployerlawblog.com)

Fifth Circuit Stays OSHA ETS (natlawreview.com)

Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House

CMS Omnibus Staff Vax Requirements - External FAQ (508 Compliant)

Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers | CMS

Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors | The White House

New Guidance on COVID-19 Workplace Safety for Federal Contractors | The White House

Guidance for Federal Contractors and Subcontractors (saferfederalworkforce.gov)

COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)

Federal Contractors | Safer Federal Workforce

 

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

OSHA'S VACCINATION/TESTING ETS TEMPORARILY BLOCKED BY COURT

Posted On November 08, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

November 08, 2021

 

On Friday, we sent out an update on OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) which requires private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022. This blog can be found here and the ETS is here.

Shortly after its publication in the Federal Register, various states, businesses, and private advocacy groups filed legal actions against the government challenging the ETS in the 5th, 6th, 8th, and 11th U.S. Circuit Courts of Appeals. These actions generally assert that the ETS exceeds OSHA’s statutory authority and that implementation of the ETS will cause irreparable harm (i.e., employee resignations, “ruinous fines” and “employees taking an irreversible vaccine”).

On Saturday, November 6, 2021, the 5th Circuit Court of Appeals in New Orleans, in response to a joint petition from Louisiana, Mississippi, South Carolina, Texas and Utah and several interested businesses, ordered a temporary pause of the ETS pending expedited judicial review.  The Court stated, “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.” The opinion can be found here.   

The Court directed the government to respond to the motion for permanent injunction by Monday (which is today!) at 5:00 p.m., and the petitioners to file a reply by Tuesday (tomorrow) at 5:00 p.m.

 

So, what does this mean for employers?

First, employers who wish to implement mandatory vaccination or testing requirements outside of the ETS may still do so.  Regardless of the outcome of the court challenges, there is nothing prohibiting employers from moving forward with a mandatory vaccination or testing policy.  Just remember to make accommodations for medical conditions that contraindicate a vaccination, disabilities and sincerely held religious beliefs.

This is a dynamic and fast-moving situation with potential compliance deadlines just around the corner – December 6th and January 4th. Therefore, employers should, in the meantime, continue with compliance preparation so they are ready if the ETS goes forward.  

Stay tuned! We are monitoring this and will keep you posted.  

 

Additional Resources

Information about the various states filing petitions relating to the ETS in the 5th Circuit may be found at the following links:

Mississippi Attorney General (state.ms.us)

South Carolina Attorney General (scag.gov)

Utah Attorney General (utah.gov)

Louisiana Attorney General (state.la.us)

Texas | Office of the Attorney General (texasattorneygeneral.gov)

 

Matrix Can Help!

Matrix offers ADA and vaccine exemption services for its clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

OSHA’S ETS IS HERE-NOW WHAT?

Posted On November 05, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

November 05, 2021

 

OSHA’s long-awaited Vaccination and Testing Emergency Temporary Standard (“ETS”) for private employers with 100 or more employees has arrived. The ETS, which can be found at Federal Register: COVID-19 Vaccination and Testing; Emergency Temporary Standard, requires the full vaccination (or the beginning of weekly testing) of covered employees by January 4, 2022.

Here are noteworthy points about the ETS:

  • Employers must determine, obtain proof, and maintain records of the vaccination status of their employees.
  • Employers must establish a mandatory vaccination policy OR an alternative policy requiring regular testing where unvaccinated employees submit to COVID-19 testing at least every 7 days and wear face coverings in the workplace.
  • Employers with a mandatory vaccination policy must require all current and new employees to be fully vaccinated –i.e., two weeks after receiving both shots of a two-dose vaccination or one dose for a single-dose vaccine. 
  • Effective dates:  Employees must be fully vaccinated and/or the employer must implement weekly testing by January 4, 2022. Other requirements such as implementing the mandatory policies in compliance with the ETS and masking and temporary removal of COVID-positive employees from the workplace are effective December 6, 2021
  • Employees do not need to be vaccinated if:
  • For vaccinations, employers must provide reasonable paid time for each primary vaccination dose (up to 4 hours per dose) and paid sick leave for recovery time due to side effects associated with the vaccination. 
  • There is no requirement for employers to pay the cost of employee testing.
  • Employees who work from their home, from a location with no other customers or coworkers present, or exclusively outdoors are exempt from the ETS.
  • Unvaccinated employees who have previously been diagnosed with COVID-19 must still meet the mandatory vaccination or weekly testing requirements.
  • Employees who test positive or are diagnosed for COVID-19 – whether previously vaccinated or not – must promptly notify their employer and employers must exclude them from the workplace regardless of vaccination status.

Here is a summary of the standard from OSHA.

US Department of Labor issues emergency temporary standard to protect workers from coronavirus | Occupational Safety and Health Administration (osha.gov)

An excellent summary is also available on this blog:  OSHA’s Vax-or-Test ETS: What Employers Need to Know - Labor & Employment Report (laboremploymentreport.com)

And our buddy Jeff Nowak’s blog specifically takes on the leave of absence requirements of the ETS here:  Under the ETS, What Paid Leave Must an Employer Provide an Employee to Obtain a COVID-19 Vaccine or Test? - FMLA Insights

Below are FAQs, summaries and additional compliance materials on the ETS. 

COVID-19 Vaccination and Testing ETS - Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov)

COVID-19 Vaccination and Testing ETS (osha.gov)

US Department of Labor issues emergency temporary standard to protect workers from coronavirus | Occupational Safety and Health Administration (osha.gov)

COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)

Matrix Can Help!

Matrix offers ADA and vaccine exemption services for its clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

TRUE FMLA STORIES FROM RECENT COURT OPINIONS – THE FAQS: PART 2

Posted On November 03, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

November 03, 2021

 

In September, the Matrix compliance team presented a DMEC webinar, True FMLA Stories from Recent Court Decisions, which can be viewed here.  We received great questions from attendees during that webinar and answered some of them in a blog post last month.  Now we take on more questions raised by attendees to discuss discipline and performance management of employees that request or are already out on FMLA leave.

Q: Can an employer terminate an employee previously under investigation immediately following a request for FMLA leave?

A: Yes, provided the investigation of the employee and termination decision are unrelated to the employee’s FMLA request and are for legitimate business reasons.  If an employee is under investigation for misconduct or placed on a performance plan for a reason unrelated to the FMLA leave request, the employer is not prohibited by the FMLA from taking disciplinary action immediately, including termination, if supported by the employee’s conduct and the employer’s policies.  While this is especially true if the investigation or performance action was underway before the employee’s FMLA request, your hands are not tied by the FMLA from acting appropriately on employee issues discovered at any time after the employee’s request or during the FMLA leave.  Of course, make sure you keep all documentation supporting the investigation and resulting discipline/ termination.

Our webinar discussion of Blank v. Nationwide Corporation, (6th Cir. 2021), is illustrative. In that case, the court found that a call to an employee out on FMLA leave notifying him of a demotion due to racist comments he made before he went out on leave and a later phone call to that employee in response to his complaint about the demotion were de minimus contacts that did not interfere with his FMLA rights.  Also, in Krupa v. Support for You, LLC, (N.D. Ohio 2021), a federal district court found that an employer’s termination of an employee for payroll fund mismanagement while the employee was on FMLA leave did not violate the FMLA.  The court found no causal connection between the employee’s FMLA leave and the reason for her termination. 

Q. Is it appropriate to call the employee while on leave to discuss a PIP?

A. Yes, provided the discussion is short, concise and to the point. 

The mere delivery of and a short discussion about a Performance Improvement Plan (PIP) is generally permissible. Again, de minimus phone calls with employees out on FMLA leave are acceptable. There is no right under the FMLA to be “left alone” and employees out on FMLA are not completely absolved of responding to an employer’s inquiries.  Also, you should consider what is fair to the employee.  It is probably better to let the employee know there is a serious issue that needs tending to rather than springing it on the employee when he returns to work. 

On the other hand, in person meetings or prolonged telephone calls discussing the PIP such as an employee’s specific tasks and projects, the nature and quality of the employee’s work, the employee’s additional work obligations and how he or she can meet them going forward, look more like work than de minimus phone calls.  To minimize the risk of an interference claim, a better practice is to call the employee, let the employee know that you will be sending a PIP for review, and tell the employee that you will have follow-up discussions upon her return from leave. Then, don’t forget to schedule the PIP discussion immediately after the employee’s return to work!

Pings for Employers

  • Document and communicate performance and conduct problems as soon as you become aware. Do not wait! Apply this process consistently and uniformly with all employees.
  • Keep phone calls with the employee out on FMLA concise and discrete and relay the crucial information the employee must know.
  • When conducting a workplace investigation or making decisions about disciplinary actions, make sure the decision is fully documented showing the dates of the relevant events and dates in which the decision to discipline or terminate was made and before the message is delivered to the employee. This is not only a good HR practice but will protect you down the road in the event the employee requests or goes out on leave.
  • Employers sometimes fear that taking disciplinary action in close proximity to an employee’s FMLA request or leave will look like interference or retaliation, but you are not expected to ignore misconduct or bad performance. Whether you take action following the employee’s request, during the leave, or immediately upon the employee’s return to work, that action will be in close proximity to the employee’s exercise of FMLA rights. So, why wait and let the situation go untended?
  • Of course, each situation is fact specific and before making a final decision whether to hold that conversation or take disciplinary action, you should seek legal advice.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

PAID FAMILY AND MEDICAL LEAVE – AN UPDATE

Posted On October 29, 2021  

October 29, 2021

 

Employers, Employees, Consultants, and Carriers are struggling to keep up with nationwide legislative updates and what it means to them. Join us for this checkpoint of where things stand and where they may be heading.

Date and Time:
Thursday, November 11th at 2:30 pm ET

Host:
Marti Cardi, Esq.

VP, Product Compliance
Matrix Absence Management

Kevin Cranston
Director
Strategy, Product Development & Marketing, Reliance Standard

Click here to register for this event

OCTOBER: NATIONAL DOMESTIC VIOLENCE AWARENESS MONTH

Posted On October 20, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

October 20, 2021

 

In 1989, the U.S. Congress passed a law designating October as National Domestic Violence Awareness Month. Despite increased awareness of this issue, the following statistics from the National Coalition Against Domestic Violence are troubling:

  • More than 10 million adults experience domestic violence annually.
  • If each of these adults experienced only once incidence of violence, an adult in the US would experience violence every three seconds.
  • 1 in 4 women and 1 in 10 men experience sexual violence, physical violence and/or stalking by an intimate partner during their lifetime.

Leave Laws Protecting Domestic Violence Victims

U.S. jurisdictions continue to add laws mandating job-protected leave of absence and providing employment protections when an employee or a family or household member is a victim of domestic or sexual violence such as Missouri, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon and Washington. We’ve previously written about these domestic violence leave laws, herehere and here. In addition, and more recently, U.S. jurisdictions are also providing employees with paid time off through their family and medical leave legislation. 

Although these laws vary, the types of activities protected by these laws typically include getting medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, and/or relocating to a permanent or temporary residence.  

In addition, do not forget that in some situations, leave under the Family and Medical Leave Act (FMLA) may also be available to employees and their family members to address certain health-related issues resulting from domestic violence. As noted by the Department of Labor in a FAQ, “An eligible employee may take FMLA leave because of his or her own serious health condition or to care for a qualifying family member with a serious health condition that resulted from domestic violence. For example, an eligible employee may be able to take FMLA leave if he or she is hospitalized overnight or is receiving certain treatment for post-traumatic stress disorder that resulted from domestic violence.”  See FMLA Frequently Asked Questions | U.S. Department of Labor (dol.gov)

How to stay on top of this Information

This is a lot of information and difficult for employers to keep up with – especially multi-jurisdictional employers.  To assist you, Matrix has created a table summarizing key portions of the domestic violence leave laws. This table provides a one-stop-shop for you to track the growing number of jurisdictions offering this type of leave and provides an overview of their requirements.  Matrix administers all of these laws for our leave of absence clients.

In addition to the specific “personal protection” leave (paid or unpaid) laws identified in this table, a number of states and municipalities have also enacted paid sick time laws containing “safe time” provisions to protect workers.  A good resource for state and municipal paid sick time laws can be found at A Better Balance.  The chart includes the following specific line item for each paid sick law:  “Can sick time be used for specific ‘safe time’ purposes (related to domestic violence, sexual assault, or stalking)?”

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. We take various steps to maintain an employee’s (or victim’s) privacy and safety. For example, we administer these domestic and sexual violence laws under the name “Personal Protected Leave.” For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com

STAY IN THE KNOW WITH OUR QUARTERLY COMPLIANCE WEBINARS!

Posted On October 08, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

& Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

October 08, 2021

 

Compliance updates show no sign of slowing down, but you can keep up with our new webinar series, The Docket:

The third quarter review of All Things Absence!  Although topics may change quarter to quarter, Matrix Absence Management Vice President Marti Cardi, Esq. together with her team Lana Rupprecht, Esq, and Armando Rodriguez will cover:

  • Pending and recently passed state and federal legislation
  • State and federal Paid Family and Medical Leave updates
  • New Equal Employment Opportunity Commission guidance, lawsuits/settlements and more concerning ADA
  • New Department of Labor guidance, lawsuits/settlements and more regarding FMLA
  • Court opinions on ADA, FMLA and other laws
  • COVID-19 updates
  • And more!

Click here to sign up for The Docket Q3 webinar on October 12, 2021 at 2:00 PM ET.

TRUE FMLA STORIES FROM RECENT COURT OPINIONS – THE FAQS

Posted On October 04, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

October 04, 2021

 

On September 14 (has it been that long ago?), the Matrix compliance team presented True FMLA Stories from Recent Court Decisions as a DMEC webinar (Disability Management Employer Coalition).  And if you don’t know DMEC, you should – check them out at dmec.org.  And here’s good news: the On Demand recording can be found here and is available to you for free even if you are not a DMEC member (yet).

We had so much fun at this webinar responding to your very good questions. Unfortunately, we ran out of time so we decided to answer a few more in this blog and future blogs.  Today we will address some of your questions on the topics of certifications and recertifications.

Question:  May an employer request a medical certification each time an employee is absent for a condition already approved for intermittent leave?

Answer:  No.  Once an employer already has a complete and sufficient certification it may not ask for more information, such as requiring a doctor’s note, for each FMLA-related absence.

The FMLA regulations allow an employer to require a request for leave due to the employee’s or a family member’s serious health condition be supported by a certification issued by the health care provider of the employee or the employee's family member.  29 C.F.R. § 825.305(a).  No information may be required beyond that specified in the regulations.  §825.306(b).

For intermittent leave, that information must include an estimate of the frequency and duration of the employee’s absences.  §825.306(a)(7).  Intermittent leave for medical treatment must include an estimate of the dates and duration of such treatments and any periods of recovery.  §825.306(a)(6).

Once the employee has provided a complete and sufficient certification on which the health care provider has stated the anticipated frequency and duration, the employer cannot ask for additional medical documentation for leave usage that falls within that estimated usage range or close to it.  If the employee’s usage is excessive as measured against the estimate, an employer may request recertification as permitted by the regulations.  More on that below!

Since it seems all things relate to COVID these days, here is a link to specific guidance from the Department of Labor relating to a similar question and COVID-19: 9.  May my employer require me to submit a doctor’s note to use FMLA leave if I am sick and unable to work because of COVID-19?  COVID-19 and the Family and Medical Leave Act Questions and Answers.

The court in the case, Oak Harbor Freight Lines v. Antti, 998 F. Supp.2d 968 (D. Ore. 2014), addressed a similar issue. There, the employer, Oak Harbor Freight Lines, became increasingly frustrated as its employees frequently took Fridays and Mondays for intermittent FMLA.  (Sound familiar?)  In response, Oak Harbor required employees to provide doctor’s notes supporting each absence and how such absences related to their FMLA-qualifying conditions. 

Two of these employees refused to provide doctor’s notes even though according to Oak Harbor, 88.99% of one employee’s FMLA time off and 94% of the other employee’s FMLA time off were adjacent to a weekend or holiday. Oak Harbor requested that the court declare that its practice of requiring these notes complied with the FMLA, but the court disagreed. It held requiring the doctor’s note was illegal given the FMLA’s specific and detailed regulations relating to medical certifications and recertifications.

The Court, quoting another case, stated: “[h[ad Congress, or the Department of Labor desired to permit employers to demand such intermittent verification, the statute or regulations would provide as much. Instead, the regulations provide that an employer can verify the absence-condition connection by means of recertification.”

So the lesson here is stick to the regulation regarding certification and recertification. If you already have a complete and sufficient certification, see if you can utilize the recertification process, which we discuss more in response to our next question below. 

Q:  How many times should an employer give an employee a grace absence approval before asking for recertification?         

This question is spot on in recognizing the recertification process as a useful and powerful tool—especially if the employee is exceeding the frequency and duration of the approved leave or has established “suspicious” patterns of usage.

Generally, for most leaves, recertification is permitted no more often than every 30 days or the expected duration of the leave, whichever is longer.  Shorter intervals for recertification are permitted if, for example, there is a significant change in the circumstances than what is set forth in the certification or if the employer has reason to doubt the stated reason for the absence. 

The FMLA regulations provide that a health care provider’s assessment of frequency and duration for an intermittent leave is an estimate only. That means just one or two “grace absences” – those allowed in excess of the number or duration of absences estimated by the provider – will not likely establish a significant change in circumstances or any reason to doubt.

But if an absence pattern that exceeds the scope of the current certification continues, that may constitute a significant change in circumstances enabling an employer to utilize the recertification process. Similarly, if the call outs are frequently near a weekend or holiday—like the employees in the Oak Harbor case, such a pattern likely casts doubt on the stated reason for the absences, also enabling use of the recertification process.  In fact, in Opinion Letter FMLA2004-2-A the DOL has opined that Friday/ Monday absence patterns can constitute “information that casts doubt upon the employee’s stated reason for the absence.”  See also 825.308(c)(2)-(3).

Pings for Employers

So where does this leave employers who struggle with combating repeated questionable FMLA absences?

  • Manage the medical certification process carefully at the outset by seeking clarification and verification and obtaining second and third opinions as needed. This is your chance if you have any reason to doubt the certification’s validity up front.
  • Once you receive a complete and sufficient certification, carefully track and document any and all absences that exceed the scope of the initial certification.
  • Utilize the recertification process if you observe a pattern of leave exceeding the frequency and/or duration of the initial certification.
  • Finally, if you have concerns about the employee’s absences and leave pattern, provide the health care provider with this information during the recertification process to inquire whether the absences are consistent with the employee’s serious health condition.  See Fact Sheet #28G for more information

Additional Questions?

We know there were additional questions and have not forgotten. We’ll take on more outstanding questions in a future blog post or two.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

WASHINGTON D.C. UPS ITS GAME – EXPANSIONS TO UNIVERSAL PAID LEAVE AND EMPLOYEE PROTECTIONS

Posted On September 27, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

September 27, 2021

 

Sitting in the shadow of the controversy over whether the Feds will pass a paid family and medical leave program, the District of Columbia has not shied away from its own PFML program.  Two significant new laws (well really, a collection of laws) have expanded D.C.’s Universal Paid Leave (UPL) program and, in effect, provide more pay for many employees using the medical portion of the paid leave. 

D.C.’s UPL program, which we previously wrote about here, was recently amended as part of D.C.’S budget for fiscal year 2022. The changes include:

  • Prohibiting short term or temporary disability insurance carriers from offsetting the UPL paid medical leave benefits against amounts owed under an STD policy effective October 1, 2021 (but see below: also in effect May 26, 2021, through March 11, 2022 under previous emergency and temporary bills); and
  • Increased duration of employee paid leave entitlements effective October 1, 2021.

The legislative history is confusing, so we chopped out that part of our original draft of the post.  What you need to know are the effective dates we share below. We’ll refer collectively to the succession of bills that got us to where we are now as “the Amendments.”

First up:  No UPL offsets for insured STD policies. 

The Amendments incorporate the previous offset prohibitions contained in prior emergency legislation.  These are in effect collectively from May 26, 2021, through March 11, 2022.

  • Under the prior laws and the Amendments, insurers are prohibited from offsetting or reducing temporary or short-term disability (STD) benefits under an insurance policy based upon actual or estimated UPL paid leave benefits received by an employee.
  • This prohibition does not apply to “self-insured employers” – defined as employers who use their own resources to pay its employees’ family, medical, STD, or related leave benefits rather than providing such benefits through an insurance company and employers who contract with a third-party insurer to administer their self-funded leave benefits program.
  • It also does not apply to insurance carriers administering employer-funded STD plans for employers.

    At the time of the initial emergency and temporary legislation, UPL provided only 2 weeks of paid leave benefits for an employee’s own medical condition.  Insurers will feel more of an impact due to the increased amount of paid leave contemplated by the Act discussed below.

    Next:  The UPL (Paid Leave) Changes.

    The Amendments expand UPL’s paid leave provisions, beginning October 1, 2021:

    Pre-natal Leave Added.

  • Employees may take up to 2 weeks of paid pre-natal leave relating to routine and specialty appointments, exams and treatments associated with a pregnancy provided by a health care provider. This includes pre-natal check-ups, ultrasounds, treatment for pregnancy complications, bedrest prescribed by a health care provided and pre-natal physical therapy. Pre-natal care was not previously called out separately as a UPL leave reason.
  • The two weeks of paid pre-natal leave is in addition to the total amount of paid parental leave permitted in a given year which, as of October 1, 2021, will be a total of 10 weeks of paid leave (2 weeks pre-natal + 8 weeks of parental).

    Additional Leave for an Employee’s Own Serious Health ConditionAs of October 1, 2021, employees may receive up to 6 weeks of paid leave associated with their own serious health condition.  Previously, the UPL permitted just 2 weeks.

    Progressive Annual Expansions of Leave.

  • The Amendments contemplate annual increases – up to 12 weeks – in the amount of paid parental leave, employee serious health condition leave, or family serious health condition leave.
  • Employees may still not exceed 8 weeks of paid leave benefits in a 52-workweek (or whatever the maximum amount of parental leave is at the time a claim is made) EXCEPT when combining pre-natal and parental leave as discussed above.

    No Elimination Period (At Least for Now)The 7-day elimination period is temporarily removed for claims filed “after October 1, 2021” until 1 year and 1 day after the end of the COVID-19 public health emergency.

    30-Day Claim Period.  Employees may submit a claim for paid leave up to 30 days after they qualify for leave.  An employer may waive this 30 day period if the employee is unable to apply for his or her paid leave benefits due to “exigent circumstances.”

    Temporary Revised Calculation of Average Weekly WageThe calculation of the average weekly wage for the employee contribution amount also will temporarily change (for claims filed “after October 1, 2021” until 1 year and 1 day after the end of the COVID-19 public health emergency) so that the lookback period is the highest four out of ten quarters—rather than the highest four of the last five quarters.

    Finally:  Changes Impacting D.C.’s FMLA

  • The Amendments also expand coverage under the District’s unpaid but job-protected Family and Medical Leave Act to employees who were employed by the same employer for at least 12 consecutive or non-consecutive months.
  • Leaves will still run concurrently if the leave qualifies under both D.C. UPL and D.C. FMLA.  However, as we previously reported, there may be situations where some employees may be entitled to UPL leave but not D.C. FMLA leave and thus be without job protection. 
  • As always, the federal FMLA will run concurrently with either law if it applies.

Universal Paid Leave Amendment Act Resources

Universal Paid Leave Amendment Act of 2016

Universal Paid Leave Emergency Amendment Act of 2021 (B24-0373)

Universal Paid Leave Amendment Act of 2021 (B24-0285)

Paid leave regulations:

D.C. Office of Paid Family Leave

Department of Employment Services

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com

TRUE FMLA STORIES FROM RECENT COURT OPINIONS

Posted On September 07, 2021  

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

September 07, 2021

 

Tuesday, September 14 | 12:00 pm ET

When dealing with leaves of absence, the Family and Medical Leave Act (FMLA) statute sets the framework, while the regulations provide more detail, and the Department of Labor’s (DOL) opinion letters give us the government’s side of the story. But there’s more to FMLA compliance than that. The rubber really meets the road with the resulting court opinions. Join Marti Cardi, Vice President – Product Compliance. Lana Rupprechet, Director – Product Compliance, and Armando Rodriguez, Compliance Attorney, for this session as we explore how employers fare in FMLA lawsuits, the lessons learned, and the absolute latest in FMLA case law.

 

This session qualifies for the following CEUs:

  • 1 ADMS
  • 1 CDMS
  • 1 CLMS
  • 1 PHR
  • 1 SHRM

Enter "21MATRIX1" at checkout and that should reduce the charge to $0.00!

MISSOURI OFFERS JOB-PROTECTED LEAVE TO VICTIMS OF DOMESTIC AND SEXUAL VIOLENCE

Posted On August 23, 2021  

by Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

August 23, 2021

 

Effective August 24, 2021, Missouri becomes the latest state to mandate job-protected leave of absence when an employee or a family or household member is a victim of domestic or sexual violence. With this law, Missouri joins California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon and Washington as jurisdictions providing employment protection to victims of domestic and/or sexual violence, stalking, and the like.  

We’ve previously written about some of these laws here and here.

Key provisions of the Missouri law are as follows:

Covered employers under the law include the state or any agency of the state, political subdivision of the state, and private employers of at least 20 employees.

Covered employees.   Missouri employees are eligible as of date of hire.

Leave reasons and covered relationships. An employee is eligible to take leave under the law if the employee is a victim of domestic or sexual violence, or to care for a family or household member who is a victim of domestic or sexual violence. The law defines “family or household member” as:

  • Spouse
  • Parent
  • Son or daughter
  • Other person related by blood or by present or prior marriage
  • Other person who shares a relationship through a son or daughter, and
  • Persons jointly residing in the same household

Leave Duration. Employers with 20-49 employees must provide an employee 1 workweek of leave and employers with 50 or more employees must provide 2 workweeks of leave during any 12-month period. The employee can take the leave continuously, intermittently, or on a reduced schedule.

Leave is available for the following purposes for the employee or to assist the employee’s family or household member:

  • Seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee's family or household member
  • Obtaining services from a victim services organization for the employee or the employee's family or household member
  • Obtaining psychological or other counseling for the employee or the employee's family or household member
  • Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee's family or household member from future domestic or sexual violence or to ensure economic security, or
  • Seeking legal assistance or remedies to ensure the health and safety of the employee or the employee's family or household member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic or sexual violence

Employee notice and documentation. An employee must provide at least 48 hours’ notice of the need for leave, unless providing advance notice is not possible. An employer may require documentation that an employee, or employee’s family or household member, is a victim of domestic or sexual violence. An employee may satisfy the documentation requirement by providing a sworn statement and:

  • Documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional from whom the employee or the employee's family or household member has sought assistance in addressing domestic violence or sexual violence and the effects of such violence;
  • A police or court record; or
  • Other corroborating evidence.

Employer’s Duty to Provide Safety Accommodations. The law imposes a duty on an employer to make reasonable safety accommodations in a timely manner resulting from circumstances relating to being a victim of domestic or sexual violence. The law defines reasonable safety accommodation as:

An adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, implementation of a safety procedure, or assistance in documenting domestic violence that occurs at the workplace or in work-related settings, in response to actual or threatened domestic violence.

Additionally, any exigent circumstances or danger facing the employee or his or her family or household member must be considered when determining whether the accommodation is reasonable. However,  the employer is under no such duty if it can demonstrate that the accommodation would impose significant difficulty or expense, when considered in light of the nature and cost of the accommodation.

Use of Other Paid Leave.  The law specifies that the leave is unpaid but is silent as to whether an employee can or must use accrued paid time off during a leave.   The safest interpretation will be to allow employee to use other accrued paid leave such as PTO or, in some cases, paid sick leave, at their option but not to mandate such use.

Confidentiality.  As with other similar laws, employers have a duty to maintain the confidentiality of information received about an employee’s status as a victim of domestic violence.

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. We take various steps to maintain an employee’s (or victim’s) privacy and safety. For example, we administer these domestic and sexual violence laws under the name “Personal Protected Leave”. For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

A MID-SUMMER NIGHT'S REMINDER - NEW AND EXPANDED LEAVE LAWS FOR 2021-2022

Posted On August 10, 2021  

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

August 10, 2021

 

Isn’t it weird how summer speeds up right after July 4th? We’re more than halfway through the dog days, and a lot has happened in the state and federal legislatures regarding paid and traditional leave laws. Who can keep track of it all? Who wants to?

Spoiler alert: We can, and – like the government – we’re here to help! (Really, we are!)

Let’s make it easy as possible. If your business interests lie on one of the baker's dozen jurisdictions below, you have some studying to do with regard to new and amended leave laws. Remember, these include both the regular ol’ vanilla employee leaves as well as paid family and medical leave (PFML) laws. Plus, there are a couple of oddball offerings that don’t really fit but we have to put them somewhere – like the Virginia law expanding STD benefits for birth mothers.  

CA MD PA
CT MO RI
DC NH VA
KY OR WA
ME

What you won’t find in this blog is COVID-specific leave laws. Maybe another day?

So click below for your favorite state and see what’s new or on the horizon.

 

Matrix can help! We are always on the watch for new laws that affect the services we provide, and we’ll keep you up to date. Whether it is through this blog, our quarterly compliance update webinars The Docket, or in compliance consultations with our client employers and other business partners, you can count on Matrix for the latest developments in leave of absence, paid leave benefits, and ADA accommodations. Contact your Matrix or Reliance Standard account manager or one of our regional practice leaders for more information, or send us a message at ping@matrixcos.com.

STAY IN THE KNOW WITH OUR NEW QUARTERLY COMPLIANCE WEBINARS!

Posted On July 19, 2021  

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

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

July 19, 2021

 

Compliance updates show no sign of slowing down, but you can keep up with our new webinar series, The Docket:
A Quarterly Review of All Things Absence!
Although topics may change quarter to quarter, Matrix Absence Management Vice President Marti Cardi, Esq. will cover:

  • Pending and recently passed state and federal legislation
  • State and federal Paid Family and Medical Leave updates
  • New Equal Employment Opportunity Commission guidance, lawsuits/settlements and more concerning ADA
  • New Department of Labor guidance, lawsuits/settlements and more regarding FMLA
  • Court opinions on ADA, FMLA and other laws
  • COVID-19 updates
  • And more!

 

Sign up for The Docket Q2 webinar on July 20, 2021 at 2:00 PM ET.

 

To add this webinar to your personal calendar, please use the button below.

 

NEW HAMPSHIRE PASSES A PAID FAMILY AND MEDICAL LEAVE LAW -- AND IT'S A DIFFERENT ANIMAL!

Posted On July 06, 2021  

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

July 06, 2021

 

New Hampshire has joined the PFML club but with a new kind of membership – a model we haven’t seen before in other states with statutory paid family and medical leave programs. Does the “Granite State Paid Family Leave Plan” represent the start of a new style of PFML programs, or is it just what you’d expect from a state whose official motto is “Live free or die?”

Too early to tell, but the New Hampshire bill has already broadened our thinking about insured paid family leave programs.

In summary, the law requires paid family leave for state employees and provides for voluntary opt-in by non-state employers and individual non-state employees. What’s different is that the state will contract with an insurance carrier to provide and administer the paid leave benefit. The anticipation is that with a large pool of state employees to insure, the carrier will be able to offer voluntary participation by non-state employers and employees that is realistic and affordable.

New Hampshire House Bill 2 can be found here.  It’s long so search within the bill for “Granite State Paid Family Leave Plan” and you’ll find it near the end. The statute has lots of ambiguities and inconsistencies, and many details are left to the Commissioner of the New Hampshire Department of Administrative Services to determine. With that caveat, here’s what we think we know about the Plan from the statute and informal interpretations at this point. But stay tuned, there’s much more to come over the next few months!

Covered Employers and Employees

State employers/employees. The state will solicit bids from qualified insurance carriers to provide the paid leave benefit to state employees. [21-I:99.I.] It is not clear whether more than one carrier could be awarded a portion of the business. Best guess at this time is that it will all go to one carrier, but others may be able to provide the opt-in coverage to non-state employers and employees.

Non-state employers/employees. The selected carrier(s) must offer participation in the paid leave Plan to private employers, other non-state public employers, and employees whose employer does not opt in to the Plan. [21-I:100.] To participate, private employers must have more than 50 employees in New Hampshire. [21-I:100.II.] Covered employers can elect to provide FMLI coverage at no cost to employees OR on a full or partial employee contribution basis. [21-I:101.]

Individual employees can opt in to the Plan if:

  • they work for a private employer with more than 50 employees that (1) does not opt in as an employer and (2) does not offer a company paid leave program with benefits at least equivalent to the state coverage. [21-I:100.III]; or
  • they work for a private employer with fewer than 50 employees that does not offer a company paid leave program with benefits at least equivalent to the state coverage.

Benefits

Family leave is available for reasons very similar to the FMLA: bonding with a new child, caring for a family member with a serious health condition, qualifying exigencies due to a family member’s foreign military deployment, and caring for an ill or injured servicemember. [21-I:99.II and 282-B:2.VI.]

Covered relationships for family leave include child, parent, grandparent (all broadly defined), and spouse or domestic partner.

Medical leave for an employee’s own serious health condition is not available to state employees. [21-I:99.II.] Private and non-state public employees covered through the purchasing pool can take medical leave for non-work-related medical conditions if their employer does not provide short-term disability insurance. [282-B:2.VI(e).]

Benefits are limited to 6 weeks of paid leave “with no minimum duration required.” [21-I:99.III(b).] The meaning of the quoted phrase is not clear: Does it refer to the ability to use, for example, only 1 or 2 weeks of leave, or does it mean that leave can be taken intermittently for up to a total of 6 weeks?

Wage replacement is 60% of an employee’s average weekly wage (AWW), capped at the Social Security taxable wage maximum.

Funding

Plan costs for state employees is funded by the state. Funding for all other participants will be through a purchasing pool paid into by employers and employees that opt into the Plan. Premiums for individuals in the pool cannot exceed $5 per subscriber per week.

Employers that have more than 50 employees and do no opt into the Plan must withhold payroll deductions for premiums from their employees who opt in individually. [282-B:3.II.] Employers with fewer than 50 employees do not have to take payroll deductions. [282-B:10.] Employees of such employers who choose to obtain coverage will contract directly with the carrier(s) awarded the business through the purchasing pool. [21-I:100.III.]

Tax Credit

The statute provides an employer tax credit of 50 percent of the premium paid by a sponsoring employer for FMLI coverage offered to employees pursuant to the statute. [77-E:3-e.] It is not clear whether an employer that voluntarily provides paid family leave benefits outside of the Plan can also receive the tax credit.

Employee Eligibility

The law does not specify eligibility requirements for state employees but does provide that the Commissioner shall establish a “tenure requirement” expressed in months of work. Once established, eligibility is portable if an employee changes jobs. [21-I:99.IV.(b).]

For non-state employees participating through the purchasing pool, the statute provides for “a 7-month waiting period, a one-week elimination period, and a 60-day annual open enrollment period.” [21-I:100.III.] Common interpretation is that the 7-month waiting period is how long an employee must wait before becoming eligible for coverage through the pool. However, there is no explanation of whether that means 7 months of employment in New Hampshire, 7 months of employment with the current employer, 7 months of paying premiums into the pool, or some other factor.

Job Protection

Employees of an organization (with 50 or more employees) that sponsors a Granite State Plan are entitled to restoration to the same or an equivalent position following leave; and to continued health insurance during leave, with employees continuing to pay their share of costs. [275:37-d]

Effective Dates

The Commissioner must issue a request for proposals for FMLI coverage as described in the statute no later than March 31, 2022. The FMLI coverage must be in place for state government employees and available for purchase by other public and private employers with more than 50 employees and individuals by January 1, 2023. [21-I:108] This creates an extremely tight timeframe between issuance of the RFP, award of the contract, and implementation of the program from zero to payment-ready.

What We Don’t Know

The statute is pretty bare-bones compared to what we are used to seeing in other states, with little detail and few requirements at this point. The Commissioner is empowered to determine many details, including the base period for determining the AWW; tenure requirement (in months worked) for eligibility; what (if any) elimination period applies; minimum participation requirements; parameters for open enrollment; procedures for contributory/partial contributory/non-contributory Plans; and procedures for payroll deductions for employers with 50+ employees.

Matrix Can Help!

Stay tuned! As always, we will be watching the progress of this new law, reporting developments on this blog, and assessing how the Granite State Plan fits into PFML services already offered by Matrix and Reliance Standard. If you have any questions, contact us at ping@matrixcos.com or through your Matrix or Reliance Standard sales or account manager.

A "BACKWATER POSITION" AFTER FMLA LEAVE? SORRY, ALL THINGS ARE NOT EQUAL (OR EQUIVALENT)

Posted On June 02, 2021  

by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

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

June 02, 2021

 

The Family and Medical Leave Act requires employers to reinstate an employee to the same, or an equivalent, position following an approved leave. Often this means employers are left to wrestle with the question of what constitutes an “equivalent position” under the FMLA. A recent case from federal district court in Wisconsin, Simon v. Cooperative Educational Service Agency, 2021 WL 2024921 (May 21, 2021) provides some helpful guidance.

Sarah Simon held the position of “alternative program lead teacher” for Cooperative Education (“CESA”) at REACH Academy, a school for elementary students with emotional and/or behavioral disabilities. Her duties included far more than teaching curriculum to the students in her classroom. They also involved management of paraprofessionals working under her supervision, and developing and implementing integrated education plans (“IEPs”) for her students.

Ms. Simon suffered a concussion from a physical altercation with one of her students. She left work to go to the Emergency Room and informed HR about her need for time off as a result. She was placed on worker’s compensation leave and cleared to return to full time duty after about a month. While she was on leave, her employer concluded restoring and returning her to her prior job constituted an “unreasonable risk.” She was instead placed in a position as a special education teacher at a different school, but at her same salary and benefits – until being informed that her contract would not be renewed. Simon sued, alleging CESA had failed to reinstate her to an equivalent position.

The case went to trial on that question. You know the employer is going to lose when early in the opinion the court observes that the employer “not only refused to return her to her previous position, but instead parked her in a backwater position with materially fewer responsibilities … Simon deserved better and the law demanded better.” Yikes.

The FMLA provides that, upon return from leave, an employee is entitled to be restored to the position she held prior to leave, or to an equivalent position which is “virtually identical to the employee’s former position,” with equivalent employment benefits, pay, and other terms and conditions of employment. The test for equivalency is strict: the new position must involve “the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a).

This employer thought that as long as Ms. Simon was earning the same salary, that was enough to be equivalent; but the regulations bear out that jobs are about more than just pay. In Ms. Simon’s case, the move to the special education role eliminated management responsibilities she had for the paraprofessionals with whom she worked, along with many significant duties in which she clearly took great pride and for which she was vested with authority and discretion. In Simon the court held that a new position with less prestige and visibility, or a loss of management responsibilities – even at the same pay – is not an equivalent position.

Pings for Employers:

  • “Unreasonable risk?” It is truly cringe-worthy to hear an employer make the assumption that an employee who was injured at work constituted an “unreasonable risk.” The court opinion never explains what CESA perceived this risk to be, or why reinstatement to a different position lessened that supposed risk. This consideration is irrelevant in the FMLA world, however, because the FMLA does not allow an employer to deny job restoration because of a fear of risk.
  • Same position is your best bet. When an employee is returning from leave, your best bet is to restore her to the same job she held prior to taking FMLA. If that is not available for legitimate business reasons or otherwise, look for one that is truly equivalent and comparable, not only in terms of pay and benefits but the other practical, meaningful aspects of work that employers should never forget. When an employee is “reinstated” following FMLA leave to a position that is less prestigious or has less responsibility, you are at risk for a lawsuit.
  • An ADA lesson on the side. It appears that Ms. Simon recovered quickly enough that her condition did not rise to the level of an ADA-protected disability. However, let’s consider some ADA rules that otherwise would have applied: Under the ADA, the employer’s obligation is to restore an employee to the SAME position following leave as an accommodation. An employer’s failure to reinstate the employee to the same position is justified only if it would pose an undue hardship on the business – a tough standard to meet. We touched on that topic in a prior blog post.
  • And a BONUS ADA lesson! Finally, the ADA does not permit an employer to refuse to reinstate an employee after accommodation leave due to a fear of “increased risk” unless the employee poses a direct threat to herself or others. The EEOC addressed this issue in the workers’ compensation context in its Enforcement Guidance on WC and the ADA at Question 14. Suffice it to say that, if you are going to consider an employee a risk after she is injured in your workplace, you had better have some objective support, medical or otherwise, to back up that position!

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services.[MC1] For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.


 [MC1]

"CAN YOU HELP ME DESIGN A PFML PLAN THAT SATISFIES ALL STATE REQUIREMENTS?" PART III IN OUR PAID FAMILY LEAVE TRILOGY

Posted On May 10, 2021  

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

May 10, 2021

 

This is the third of a 3-part series on paid family and medical leave (PFML). Here are the prior posts:

  • This is the third of a 3-part series on paid family and medical leave (PFML). Here are the prior posts:
  • The FAMILY Act – Federal Paid Family and Medical Leave Coming Your Way? (Part II)

For those of you who stick with us through this post, we have a reward at the end – and you don't even have to send in your box tops to get it!

 

“Hey guys, can you help me design a PFML plan that will satisfy ALL the state requirements?”

We get this question a lot. The answer is, uh, no. Nor would you really want that! While there are some common features that make up a baseline PFML offering, every state that has a paid disability and/or paid family leave law – and I mean every state – puts its own special stamp on the scope of the benefits provided. Cover all of those universally and you may not have any workers left on the job site!

Ok, that’s maybe a bit of an exaggeration, but not as much as you might think. Let’s consider:

For an employer to comply with every state law in which it has employees, a universal plan will have to meet the provisions most favorable to the employee in any such state. That means the best benefits required by any state plan and the lowest cost or burden. Let’s take that apart to see what it means, element by element.

  1. You can never cover them all with one plan. This is because some state programs are administered only by a state agency, i.e. private plans are not allowed. So, for example, in Rhode Island and District of Columbia employers have no choice but to adhere to the state benefits scheme. One option, though, would be to layer on more benefits to bring your RI and DC employees up to par with all your other U.S. employees.
  2. Concurrency with FMLA and Stacking. “Stacking” means the ability of an employee to take leaves for the same reason – bonding, for example – sequentially rather than concurrently, thus stretching out the amount of time on leave. As you may recall, FMLA is never an employee’s choice – if leave is taken for a covered reason and an eligible employee has FMLA entitlement available, the employer must designate the leave as FMLA. Ideally, if an employee takes leave that is covered by FMLA and also covered by a state paid leave law we want both laws to apply at the same time. And in some states this works. In Massachusetts, for example, the employee’s leave is automatically covered by and applied to Mass PFML entitlements under the state plan (or a private plan) even if the employee doesn’t request such coverage. In New York, the employer can elect to have concurrent FMLA / NY PFL coverage by giving appropriate notice to the employee. But cruise on up to the Pacific Northwest: In Washington, it is the employee’s choice whether to take WA PFML at the same time as FMLA. So, an employee could choose to take 12 weeks of unpaid FMLA for bonding (but maybe get some pay through use of PTO) and then take another 12 weeks of WA PFML paid leave for bonding. Another, more reasonable, example of this rule would be if the employee needs time off now for surgery and takes FMLA, but saves the WA PFML entitlement to bond with an expected new child, or for an upcoming need to care for a family member with a serious health condition.

    Think of the implication in building a universal paid leave plan: To provide the better benefit – a Washington employee’s ability to defer usage of the state paid and job-protected leave to a later time – the universal plan would need to allow every employee to defer usage of the state leave benefit in all cases. Think of the stacking going on when employees grow savvy to this idea!

  3. All leave reasons, all family members, for the longest durations. Here’s the next consideration: A universally compliant plan would need to provide paid, job-protected leave for every leave reason offered by any state and, for leave to care for a family member, all family relationships covered by any state, and for the longest durations available. Here’s what it would look like:
    • Leave reasons: Employee’s health condition, care of family member, bonding, military exigencies, care of injured servicemember, safe leave, organ/bone marrow donation, bereavement . . . and any other leave reason added by amendment or through a new state PFML law.
    • Family members: Parent, spouse, domestic partner, child (any age), sibling, grandparent, grandchild, and all the permutations of these relationships such as step, foster, and in-law. Then there’s legal guardian or ward, in loco parentis, and the recent expansion to what we call “like a family member” – meaning anyone the employee considers to be like a family member, regardless of whether there is a blood or legal relationship. Sound squishy? Here’s an example: my grade school best friend’s mother who looked after me every day after school while my mom was at work and I was at her house, doing homework and playing with my friend. That might be stretching it, but not much under some of the laws.
    • Durations: Up to 52 weeks for your employee’s own serious health condition, and up to 12 weeks for family leave or other reasons.

     

  4. Costs & benefits. Here’s where the rubber meets the road. If you choose to withhold contributions from employee paychecks to pay for these leave benefits, under a universal plan you could withhold no more than the lowest rate allowed in any state. That’s 0.2% of the employee’s wages (Colorado, contributions effective in 2023). But you have to provide the highest benefit, which is California’s $1357/week in 2021 for both disability and family leave. California allows withholding 1.2% of employee’s wages to cover that – 6 times more than Colorado allows. So I’m just not sure the math works out, unless as an employer you are financially very fit and intending to carry a big portion of the cost of the program.

Other stuff. There are many other features you would have to factor in to have a universally compliant PFML plan, such as intermittent time in one hour or smaller increments (even for bonding); very limited information you can require of the employee to support the leave; and more. And give this some thought: More states are almost certainly on their way to passing PFML laws. Who knows what special twist the next one will have? Get ready to sharpen your pencils to figure out the additional cost of more family relationships (although they probably can’t get any broader than “everyone,” longer leaves, lower employee contributions, higher benefits . . . What about your employees in states that don’t yet have a statutory paid medical or family leave benefit? Or employees in jurisdictions where a private plan is not allowed? Do you really want to offer these broad, unilateral benefits to all employees?

Here’s your reward! Congratulations! You’ve made it through this analysis of One Plan to Rule Them All. I promised a reward and here it is: Statutory Disability and Paid Family Leave Laws. This link will take you to a document that summarizes in detail all of the state-mandated paid benefit and leave programs, complete with employee eligibility, leave reasons, contribution rates, and much more. This site is maintained in real time by Matrix and Reliance Standard so it is always up to date. We hope you will find it useful and keep it on your Favorites list. Just remember, it will be updated frequently as developments warrant, so always best to go to the site rather than print it out (who does that anymore, anyway?).

Matrix can help!

I am guessing by now you can see that even if a universal plan could be designed, it would not be a sustainable paid leave program. So how do you ensure compliance with all of the conflicting and overlapping leave laws? One easy solution is to engage Matrix and Reliance Standard to handle it all for you – from state voluntary paid leave and benefits plans to unpaid but job protected leaves such as the FMLA and state equivalents. Throw in your company leave policies and we’ve got you covered! For more information reach us at ping@matrixcos.com or contact your Matrix or Reliance Standard representative.

 

PAID FAMILY & MEDICAL LEAVE UPDATES: A FREE WEBINAR

Posted On May 03, 2021  

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

May 03, 2021

 

If you’re a regular reader you know here at Matrix-Radar we spend a lot of time talking about Paid Family and Medical Leave. It’s not ‘cause we love it so much – honest! It’s because, week to week, there’s always something to talk about!

If you’re ready for a valuable State of the State (and sometimes federal) PFML, you’ll want to join me and my colleague Kevin Cranston, Director of Product and Strategy for Reliance Standard Life Insurance Company, this Thursday for an important update on the PFML landscape as it exists today – and where it might be going.

Moderated by Tim Suchecki, the webinar is free, and you can register here: https://bit.ly/3gpQLIk. I hope to see you Thursday, May 6 at 2 PM Eastern.

WORKERS' COMP AND FMLA – A CLASH OF TITANS OR FRIENDS HOLDING HANDS?

Posted On April 20, 2021  

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

& Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

April 20, 2021

 

Pop Quiz: Your employee is injured on the job. Is he covered by

  1. workers’ compensation
  2. the Family and Medical Leave Act (FMLA), or
  3. the Americans with Disabilities Act (ADA)

For those of you waiting for “D. Could be all of the above”, well done!

***

A recent decision by the 11th Circuit Court of Appeals tells of an employer who failed the quiz by applying only workers’ comp following an employee’s workplace injury. Reversing a lower court decision in favor of the employer, the appellate court observed that the FMLA does not set up a “clash of Titans” between itself and workers’ compensation. An employer’s obligations under the FMLA are not excused simply because the employer provides workers’ compensation benefits. Back to the lower court for a jury trial – a place you rarely want to be.

What happened?

On September 15, 2016, Noorjahan Ramji, an 11-year employee of Hospital Housekeeping Systems, LLC, (HHS) tripped on the leg of a table and fell, injuring her right knee. Ramji was off work for 11 days and had various doctor’s appointments. Although HHS immediately initiated a workers’ compensation claim for Ramji, they did not inform her about her rights under the FMLA to take up to 12 weeks of job-protected FMLA leave. Instead, HHS required Ramji to use her sick leave until she returned to work in a light duty position.

Per HHS’s internal policy, Pamela Merriweather, HHS’s FMLA administrator, accompanied Ramji to all medical appointments. Ramji was treated with a cortisone shot, referred to 6-8 weeks of physical therapy, and released to return to work on light duty. On a follow-up appointment a month later Ramji exhibited a full range of motion and stated that the initial cortisone shot had resolved her knee pain. Her physician found that Ramji had reached maximum medical improvement with a zero percent disability rating, and released her to return to full duty work.

Ramji attempted to return to work that same day, only to be informed that her return was contingent upon successful completion of an essential-functions test comprised of various physical tasks. Ramji had trouble with several of the tasks such as deep knee squats (it hurts my knees just thinking about it!), and asked Merriweather if she could use accrued sick and vacation leave to give herself additional recovery time.  On the following Monday, October 24, Merriweather told Ramji she was being terminated for failing to complete 5 tasks on the essential-functions test. Ramji again asked to use unused sick and vacation leave, but Merriweather denied the request and fired Ramji.

Hospital Housekeeping’s Defense

HHS asserted three basic defenses:

First, it claimed it was not on notice that Ramji needed or was entitled to FMLA leave.  The appellate court addressed this defense with a thorough review of all the information HHS had about Ramji’s condition. (Umm…the company HR administrator was present during each medical appointment!)  Even though at one point the physician released Ramji to return to work with no restrictions, this was without full understanding of Ramji’s job duties or knowledge of the impending essential-functions test she would have to undergo. Ramji’s several days of missed work and medical treatment, her inability to pass the essential duties test – witnessed by Merriweather – and her requests for time off to heal from her injury were more than plenty to alert HHS that the FMLA was in play.

Second, HHS asserted it was excused from compliance with the FMLA because it provided Ramji with workers’ compensation benefits. The court rejected this argument, citing the FMLA regulations that specify a workers’ compensation absence and FMLA leave may run concurrently. (See 29 C.F.R. § 825.702(d)(2) “An employee may be on a workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers’ compensation absence and FMLA leave may run concurrently . . .”).

Third, HHS argued unsuccessfully that Ramji’s acceptance of a light-duty position relieved it of its FMLA obligations. However, the FMLA regulations explicitly provide that “[i]f FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require an employee to take a job with a reasonable accommodation.” 29 C.F.R. § 825.702(d)(1) (emphasis added).

Moreover, an employer may offer – but an employee is not required to accept – a light-duty position in lieu of taking leave. In such case the employee may no longer qualify for workers’ compensation pay benefits, but the employee is entitled to continue on unpaid FMLA leave until either the employee is able to return to the same or an equivalent position or until she has exhausted the 12-week FMLA leave entitlement. § 852.702(d)(2).

Based on these regulations, the court held that Ramji was entitled to decline the light-duty job offer but she never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave. HHS made that choice for her by offering only a light-duty assignment.

One additional point not addressed by the court: HHS didn’t offer Ramji extended light duty after she failed the essential-functions test; they fired her!

What about the ADA?

Ramji did not assert an ADA claim. At the time of her termination she had only had her knee injury for about 5 weeks. Although there is no specific duration a condition must exist to constitute an ADA-protected impairment, 5 weeks with an expectation of near-term recovery might not be enough.

In fact, though, it took Ramji several months to heal fully. Had HHS given her FMLA leave or the option of continued light duty rather than firing her, the duration of her medical condition and its limitations might have crossed over into ADA territory. Dodged a bullet on that one, HHS!

PINGS FOR EMPLOYERS

So how do you navigate these multiple minefields?

  • First, remember that an employee is entitled to the protection of each and every law that might apply to her situation. The FMLA, state workers’ compensation, and the ADA are 3 distinct legal rights that often overlap and intersect, as evidenced by this case. None of them cancels another out.
  • Analyze the employee’s situation and the various laws to determine which ones apply. The employee will be entitled to the best benefits available under each of the applicable laws. So, for example, workers’ compensation to provide pay benefits and medical expenses, the FMLA to provide job protection during any related absences, and the ADA to provide extended leave if needed or workplace accommodations upon return to work.
  • Train, train, train! Make sure your supervisors know enough about these laws to spot when one or more might apply and know the proper channels for directing the employee and seeking further assistance. (As this case shows, even your benefits folks might need refresher training!)
  • When in doubt, notify the employee of the proper reporting processes and encourage the employee to file a claim. Reporting or filing a claim doesn’t necessarily mean the employee will get the benefits and protections of a given law, but you will have given the employee proper notice of rights and a fair opportunity to exercise those rights.
  • For FMLA, remember also to provide the employee with the notice of rights and responsibilities and the eligibility notice within 5 days of your knowledge of the claim. Here is the Department of Labor’s handy dandy Form WH-381 just for this purpose! (Or, you can always engage Matrix to do that for you! That’s kind of our jam.)

Matrix can help!

Matrix offers integrated leave of absence, ADA, and workers’ compensation claims management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

THE FAMILY ACT -- FEDERAL PAID FAMILY AND MEDICAL LEAVE COMING YOUR WAY? (PAID FAMILY AND MEDICAL LEAVE – PART II)

Posted On April 12, 2021  

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

April 12, 2021

 

In the legislative system, conflicting leave laws are considered especially heinous . . . [DHUNK DHUNK]

OK, so paid family and medical leave is not as riveting as stories ripped from the headlines. Or is it? I mean, these are actual headlines, aren’t they? Or am I just a Superfan?

This is the second of a 3-part series on paid family and medical leave (PFML). Part I addressed whether a federal paid leave law would solve the confusion and conflict created by multiple state paid family and medical leave laws.

Watch this space for Part III: Can you help me design a single PFML plan that will satisfy all state requirements?

 

We last left our heroes, those beleaguered leave and benefits administrators in your Human Resources Department, hoping that the feds would act to solve the multi-state PFML morass. In that episode, we explained why a federal paid leave law would not be the panacea we would like. Now let’s look at what is currently proposed at the federal level, and consider what paid leave and absence management would be like with that law thrown into the mix.

You will no doubt remember (who wouldn’t?) that New York Senator Kristen Gillibrand and Connecticut Representative Rosa DeLauro have introduced companion federal paid family and medical leave bills every legislative session since 2014. This year is no exception: SB 248 and HB 804, respectively.

The bills are referred to as the Family and Medical Insurance Leave Act, or the FAMILY Act, but don’t let the name fool you. There is no job protected leave associated with the FAMILY Act and, for reasons discussed below, the use of FAMILY Act benefits will not always coincide with coverage under the federal Family and Medical Leave Act (FMLA) we’ve come to know and love.

Here are the key features (but don’t expect the minute details yet – the legislation is particularly obtuse in many respects):

  • Entitlement. The total amount of paid leave is 60 “caregiving” days in a 365-day benefit period, following an unpaid waiting period of 5 caregiving days. §4(a); §2(10); §2(5). A caregiving day means any date the employee is engaged in an activity that qualifies him or her for paid leave (see next bullet point). §2(1). This is similar to the FMLA’s 12 workweeks but will not correspond in many cases because:
    • The 5-day waiting period means FMLA will start for an eligible employee before the countdown for 60 caregiving days.
    • The 365-day benefit period is calculated on a measured-forward basis tied to a certain date in relation to the paid leave (and that date is one of the obtuse parts of the law). §4(c)(1) and (2). The benefit period will never coincide with an FMLA leave year, which as we know can be measured in one of four ways: calendar year, fixed 12-month period, measured forward from first date of leave, or rolling back from first date of leave.
    • Because the paid benefit entitlement is measured in caregiving days, it appears the benefits are available only in full-day increments, not in increments of an hour or less as with the FMLA. As a result, an employee could take intermittent FMLA leave and not touch any or most of his FAMILY Act entitlement.
    • Now think about continuous leave for anyone with a work schedule other than 5 days per week. For example, if an employee works 3 12-hour shifts per week and takes continuous leave for 12 calendar weeks, the employee will exhaust her FMLA entitlement but have only used 36 caregiving days, leaving 24 more caregiving days available.
  • Benefit reasons. Pay benefits are available for “qualified caregiving,” which includes most of the same reasons as leave under the FMLA: the employee’s own serious health condition (SHC); caring for a family member with a SHC; birth and bonding with a new child; placement of a child for adoption or foster care and bonding; and qualifying military exigencies. Leave specifically to care for an ill or injured servicemember is excluded from benefits, but depending on the employee’s relationship to the servicemember, such leave will often qualify as care of a family member with a SHC. §2(6).
  • Covered family relationships. Care for a family member with a SHC includes the FMLA relationships of parent, child, or spouse, but also includes a domestic partner and the child of a domestic partner. §2(6) and §4(j). Leave taken during receipt of benefits for these two relationships will not count toward an employee’s FMLA leave usage.
  • Employee eligibility. Eligible employees include anyone who is insured for disability insurance benefits under the Social Security Act at the time of the application for benefits; and has earned income from employment during the 12 months prior to the month in which an application for benefits is filed. §4(a)(1)-(2). That’s clear as mud, isn’t it? Does that mean earned income in each of the prior 12 months, or at any time during the prior 12 months? I haven’t studied the SSA eligibility requirements yet, but they are . . . unlikely? . . . to coincide with eligibility for FMLA leave (12 months of service, 1250 hours worked in the past 12 months, and engaged at a worksite with 50 employees within 75 miles).
  • Benefit amounts. Monthly benefits are determined according to a formula that I, quite frankly, have not figured out yet. Here, you have a crack at it: “Benefits are the greater of . . . the lesser of 1⁄18 of the wages [in the highest of the last 3 years] . . . or the minimum benefit amount . . . multiplied by the quotient (not greater than 1) obtained by dividing the number of caregiving days of the individual in such month by 20.” Or something like that. §4(b).

    I can tell you this much: during the first calendar year of the program the maximum benefit is $4,000 per month and the minimum benefit is $580 per month; amounts are adjusted annually based on the national average wage index. The benefit amount per day of Qualified Caregiving is the employee’s monthly benefit divided by 20 (apparently, regardless of how many work days there actually are in the month).  §4(b). 

  • Funding. The benefits available under the FAMILY Act are funded by contributions from the employee and employer each of 0.2% of the employee’s wages, limited by the Social Security cap. §6(a) and (b).

So now, let’s revisit the prior topic, “If only the feds would act!” Whaddaya think? Is this bill the answer to the multi-state PFML morass?

Remember, this discussion doesn’t even begin to address the conflicts between the FAMILY Act and existing state PFML laws, such as differing leave reasons, family relationships, durations, employee eligibility, and so on.

 

SO WILL THESE BILLS PASS?

 


Well, let me see. They, or something very much like them, have been introduced for 5 U.S. legislative sessions now. This year, we have President Biden who has spoken in favor of paid leave in a variety of contexts. But we have a 50-50 split in the Senate and big, important bills coming and gone. Would enough Dems hold the line to pass something like this? In COVID Year II? Then again, the legislative session is 2 years long, so these bills are likely to linger into 2022 if they don’t pass in 2021. The political climate might be more amenable then. Maybe.

Hey, I guess this is as exciting as a Law and Order episode! I’m headed to Hulu for a brain break!

MATRIX CAN HELP!

We are committed to watching and understanding all things PFML – state and federal. Stay tuned for our periodic blog posts as developments warrant, and watch of our next installment of the Multi-state Morass.