NEXT ON THE HIT PARADE: DELAWARE FAMILY AND MEDICAL LEAVE INSURANCE

Posted On May 11, 2022  

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

May 11, 2022

 

The buzz around Maryland’s Paid Family and Medical Leave (PFML) hasn’t even died down and here’s Delaware with their Family and Medical Leave Insurance program (FMLI). Unlike Maryland, Delaware Senate Bill 1 became law without the dramatic flair of a veto and veto override. That being said, this bill is anything but ordinary.

A few items worth noting up front. This law borrows heavily from the federal Family and Medical Leave Act (FMLA). For example, it uses the FMLA’s months of service and hours worked requirements (but not the 50 employees/75 miles rule) for employee eligibility; the FMLA’s definitions of a serious health condition, family member, and military exigency; and defines the “application year” for measuring leave usage as the “12-month period as defined in the FMLA”.

In a welcome change, DE FMLI’s benefit rate is a flat 80% of the employee’s wages, not one of those mind-bending multi-layered formulas used by many other states. 

However, the juiciest tidbit worth mentioning is that Delaware’s employers (not the Delaware Department of Labor) are responsible for collecting and retaining claims information, adjudicating claims, and reporting approvals to the Department of Labor. At this time, that’s the extent of what we know about this unique administrative model. Happy times for Delaware employers!

Now that we got that out of the way, here is a brief summary:

  • Contributions start January 1, 2025
  • Benefits start January 1, 2026
  • Covered employers: All employers with 1 or more employees in the state
    • Employers with 1-9 employees can opt in to Parental Leave
    • Employers with 10-24 employees in the state must provide employees Parental Leave only
    • Employers with 10-24 employees in the state can opt in to Family Caregiver and Medical Leave
    • Employers with 25 or more employees must provide Parental, Family Caregiver, and Medical Leave
  • Employee eligibility: 
    • 12 months of service and
    • 1250 hours worked in the previous 12-month period
  • Leave reasons:
    • Bonding with a new child (Parental Leave)
    • Employee’s own serious health condition (Medical Leave)
    • Care of family member with a serious health condition (Family Leave)
    • Military exigencies (also Family Leave)
  • Amount of leave & benefits
    • 12 weeks for Parental Leave in an application year (the “12-month period as defined in the FMLA”)
    • 6 weeks combined for Family Caregiver Leave (including Military Exigency) and Medical leave in a 24-month period
    • Not more than 12 weeks total in an application year
  • Covered family members (all as defined in the FMLA):
    • Parent
    • Child
    • Spouse
  • Private plans will be allowed – insured or self-funded; such plans must:
    • Be offered to all employees
    • Equal or exceed the benefits and protections afforded by the PFMLI program
    • Be approved by the DE Department of Labor

You can review our more detailed summary of the Delaware PFML program and all state medical and family leave benefits at our statutory plans microsite on our Statutory Disability and Paid Family Leave Laws – Delaware is being added as you read this!

 

Matrix Can Help!

Our team is constantly tracking legislative updates to stay current on the latest and greatest when it comes to Leave, accommodations, and statutory benefit programs. Be it self-funded or fully insured, Matrix Absence Management and Reliance Standard offer a full line of absence management solutions, including private plans for statutory benefits. If you have any questions, contact us through your Matrix or Reliance Standard sales or account manager, or at ping@matrixcos.com.

JOIN US FOR A TIMELY DMEC WEBINAR ON WORKPLACE ACCOMMODATIONS

Posted On May 02, 2022  

May 02, 2022

 

You know, while many of you were outside on the playground during recess, we here at Matrix Radar were inside double-checking our work. We never got to sit with the Cool Kids, but look at us now: After all these, people are still asking us for the answers!

Which is why we want to invite you to join us for The Ins and Outs of Workplace Accommodations, a DMEC sponsored webinar Thursday, May 19, at 12 noon Eastern (9 AM Pacific). We’ll discuss the results of the 2022 DMEC Workplace Accommodations Pulse Survey, along with information we’ve gathered from more than 5 years of surveying employer ADA Accommodation data – all designed to help you understand the landscape and prepare your own organizations for the next wave.

You can register to attend this useful webinar on the DMEC website here.

But wait: Being teachers’ pets has its advantages. Ordinarily, non-DMEC member companies have to PAY to get access to this kind of info. But you, our faithful readers, can sneak in for FREE. Just enter this Coupon Code when you register, and any fee should zero out: 22MATRIX1

See? Aren’t you sorry you picked us last all those times? We turned out pretty cool.

See you on May 19!

IT’S A NEW YEAR, AND WE HAVE NEW PFML LAWS! DEVELOPMENTS IN 2022 (SO FAR!)

Posted On April 18, 2022  

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

April 18, 2022

 

We’re off to a grand start for paid family and medical leave developments in 2022.  In this post we’ll share:

  • Our up-to-date map showing 2022 state PFML legislative activity
  • The new Virginia law authorizing private paid family leave insurance independent of a state program
  • The just-passed Maryland PFML law
  • Amendments to the existing Washington PFML statute
  • A word on those intriguing PFML plans in New Hampshire and Vermont

 

The Map! 

At Matrix we keep this map up to date in real time as state PFML legislative activities develop.  You can always get the latest copy from your account manager or by emailing us at ping@matrixcos.com.

As you can see, although the feds failed to pass a paid leave law, state legislatures have been very busy in the PFML world in 2022.  At least 23 states have introduced PFML legislation of some kind – and counting.  So far Maryland is the only state to pass a PFML program (see summary below) but the year is young yet!  If you need more detail about the state programs that are paying benefits or are in the implementation phase, check out our “statplans” document here:  Statutory Disability and Paid Family Leave Laws https://www.reliancestandard.com/statplans/.  Every blue and green state on the map is summarized (well, Maryland may take a couple more days but coming soon!).

 

 

 

Virginia’s New Idea

Is this the beginning of a trend?  Virginia has passed  Senate Bill 15 that enables insured paid family leave products independent of any PFL statute.  In summary:

  • The law is effective July 1, 2022.
  • It establishes paid family leave insurance as a class of insurance available in Virginia.
  • The benefit can be written as an amendment or rider to a group disability income policy, included in a group disability income policy, or written as a separate policy.
  • The policy may offer paid leave benefits to cover an employee’s loss of income due to:
    • the birth of a child or adoption of a child by the employee;
    • placement of a child with the employee for foster care;
    • care of a family member who has a serious health condition; or
    • circumstances arising out of the fact that the employee's family member who is a service member is on active duty or has been notified of an impending call or order to active duty (commonly referred to as “qualifying exigencies”).
  • There are no requirements regarding:
    • the duration of benefits that must be offered;
    • the percentage of wage loss to be covered;
    • which family members must be included in the family care benefit; or
    • other details we are used to seeing in state mandated PFML or PFL programs.

This insurance product is entirely voluntary – no carrier is required to offer such a policy, and no employer is required to buy it or make it available to employees.

At this point there is no Virginia paid family leave or paid family and medical leave program, although current Senate Bill 1 proposes such legislation.  That bill appears to have been tabled until 2023 and legislators would have to do some fancy footwork to coordinate this new voluntary insurance product with a traditional (if there is such a thing) state-mandated paid family and medical leave program.

Maryland’s New PFML Law

Speaking of “traditional” paid leave laws, Maryland has passed a PFML law of the type we are more used to seeing: that is, a state-run program mandatory for most or all employers, usually with private plan options.  Maryland Senate Bill 275 was passed by the state legislature but vetoed by Governor Hogan with a letter criticizing the bill as “an irresponsibly crafted, rushed piece of legislation that unfairly penalizes” small business owners.  The legislature enacted the bill with a veto override on April 9, 2022.  The law has some gaps and unusual provisions, and industry chatter has it that an additional bill will be introduced in 2023 to fix some of the perceived problems.

Here is a brief summary:

  • Contributions start October 1, 2023
  • Benefits start January 1, 2025
  • Covered employers: all with 1 or more employee, but employers with fewer than 15 employees do not have to pay the employer share of contributions
  • Employee eligibility:  680 hours worked in prior 12 months – but the law does not specify whether the 680 hours must be worked for the employer from whom leave is sought, or hours from which contributions were withheld, or even hours worked within the state of Maryland. Definitely in need of clarification here!
  • 12 weeks of leave & benefits
    • An additional 12 weeks is available if the employee qualifies for leave and benefits for both the employee’s own serious health condition AND for bonding with a new child in the same leave year. Huh?
  • Leave reasons:
    • Bonding with new child
    • Employee’s own serious health condition
    • Care of family member with a serious health condition
    • Care of a servicemember who the employee’s next-of-kin(not defined)
    • Military exigencies
  • Covered family members (all broadly defined to include biological, adopted, foster, step, and other categories):
    • Child – the broad definition also includes a child placed for “kinship care” (not defined)
    • Parent and parent-in-law
    • Spouse
    • Grandparent
    • Grandchild
    • Sibling
  • Private plans will be allowed – insured or self-funded; such plans must:
    • Be offered to all employees
    • Equal or exceed the benefits and protections afforded by the PFMLI program
    • Be approved by the MD Department of Labor

Full details on the Maryland PFML law will be available soon on our statplans microsite:  https://www.reliancestandard.com/statplans/.

Washington Amends Its PFML Statute to Add a New Leave Reason . . .  and Other Stuff

Washington Senate Bill 5649 was signed into law by Governor Inslee on March 30, 2022.  The bill has many provisions amending the WA paid family and medical leave program effective June 9, 2022.  Among the most pertinent provisions, the amendments:

  • Add a new family leave reason for leave taken by an employee from work during the 7 calendar days following the death of a family member for whom the employee would have qualified for medical leave for the birth of their child (i.e., pregnancy-related serious health condition) or for family leave for bonding with a new child.
    • Essentially, this is a type of bereavement leave for death of a new child
    • The statutory language connects the ability to take leave with whether the employee could/would have taken either PFML medical leave or bonding, opening the question whether the leave is available for a stillbirth or miscarriage. The ESD is tasked to provide regulations, so hopefully this rather obtuse language will be given some clarity.
  • Mandate that leave taken during the “postnatal period” (the 6 weeks following birth) must be medical leave unless the employee chooses to take family leave. This appears to be a vehicle to provide birth mothers with as much leave as possible, as the medical leave and bonding leave draw from different buckets capped at 12 weeks (plus 2 weeks for a serious health condition related to pregnancy that results in in capacity), but the total amount of leave available is 16 (or 18) weeks.
  • Prohibit requiring a medical certification for leave during postnatal period.
  • Specify that the exemption from PFML compliance for any party covered by a collective bargaining agreement in existence on October 19, 2017, expires on December 31, 2023.

A Word on New Hampshire and Vermont

These states have veered off in a new direction, with programs that require the state to contract with an insurance carrier to provide paid leave to all state employees and voluntary paid leave for employers and individuals who opt in.  New Hampshire’s law goes into effect on January 1, 2023, and promises to be a challenge, as the state only recently issued a Request for Proposals for carriers to bid on the business.  That leaves only 8 ½ months to award the bid and for the winning carrier to design and implement a complex program.  Good luck with that!  You can read more about the New Hampshire program here and on our statplans microsite here.

Vermont is proposing a similar program but is doing so through state contracting processes and without a supporting statute.  Although Vermont is likewise hoping to start paying benefits on January 1, 2023, it is being more reasonable as it is open to a phased in approach for the other two tiers of voluntary participants – employers who elect to provide coverage to their employees, and non-covered employees and self-employed individuals who elect to opt in.  Even meeting that single January 1 goal is optimistic, however, as so far the state has not even issues an RFP.  Watch this space for more information as Vermont plans develop.

Matrix Can Help!

As you can see from all the above information, we stay up to date and keep you informed on all the state PFML developments.  More than that, Matrix offers management of self-funded private plans for disability, family, and combined family/medical leaves and benefits, and our sister company Reliance Standard offers insured products as well.  If you have any questions, contact us through your Matrix or Reliance Standard sales or account manager, or at ping@matrixcos.com.

TOP 5 ISSUES TO CONSIDER WHEN PREPARING A PARENTAL LEAVE POLICY

Posted On April 07, 2022  

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

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

April 07, 2022

 

Are you thinking about implementing a parental leave policy? Good for you! Well planned parental leave policies are excellent recruiting and retention tools, AND more importantly, offer great benefits for your employees.

Planning ahead is essential—even more so due to multiple state paid family and medical leave laws (click here for our summary) and the changing workforce resulting from the pandemic.

What should you think about when preparing a parental leave policy? Here are our top 5 suggestions:

#1: Consider the Basics

Decide what the policy will provide. This sounds obvious but this is an important first step.

  • Will the time off be paid, unpaid or hybrid? Will any paid time equal 100% of wages or a lower percentage? Must the leave be taken all at once or is intermittent/reduced schedule leave allowed? Subject to federal and state laws discussed in #2 and #3 below, these decisions are largely up to the employer and may depend, for example, on financial resources, company culture, and current policies and benefits already in place.
  • What about PTO or vacation benefits? Do you want employees to exhaust accrued PTO or vacation before any paid parental leave kicks in or treat each benefit separately?
  • Employee eligibility? Should employees qualify for such leave beginning day one of employment or will they be subject to certain eligibility requirements similar, for example, to the federal Family and Medical Leave Act (FMLA) (12 months of service, 1250 hours worked in the past 12 months) or corresponding state laws?
  • Are there benefits to offer other than leave? Consider offering other benefits that support new parents such as a new parent room for expressing breast milk, additional paid time off for caregivers, flexible work arrangements for returning parents, flexible return to work assistance, and if possible, onsite child care (or resources helping find child care which can be a stressful and daunting task).
  • What about the leave approval and return to work process? Make sure you have the resources to properly track and administer the leave.

#2: Do not forget about (or get confused by) the FMLA and state equivalents!

  • Quick Refresher: The FMLA provides eligible employees of covered employers with 12 weeks of job-protected leave for certain reasons identified in the law. The serious health condition of the birth mother and bonding with a new child are relevant to parental leave policies. For bonding leave, time must be taken within the first year of the child’s birth or placement for foster care or adoption and may only be used intermittently with employer approval.
  • Run Concurrently with FMLA: You should decide whether you want the leave to run concurrent with FMLA or whether you want to permit the employee to delay the company-provided parental leave. Remember, you may NOT delay application of the FMLA if the reason for the leave is FMLA-qualifying. For example, employers may not allow an employee to first use benefits under the parental leave policy and then have FMLA kick in. The Department of Labor (DOL) addressed this specific question, here.
  • Sound familiar? We have written about this issue many times. Check out this blog for example:

    DOL to Employers: If it’s FMLA, it’s FMLA. If it’s not, it’s not. | Matrix-Radar
  • State Unpaid Family and Medical Leave Laws: Similarly, you should check state family and medical leave laws, and if permitted (or required) run that leave concurrently with any paid parental leave policy. The DOL identifies resources summarizing state family and medical leave laws, which can be found here—not to be confused with state paid family and medical leave laws discussed next!

#3: Check state paid family and medical leave laws

  • Refresher: If you regularly follow our blog, you already know all about the state paid family and medical leave (PFML) laws, current and upcoming. If not, and you are feeling a rising sense of panic, you can find our map identifying and summarizing these laws here! Also, check out our blog on a related issue, here, discussing the challenges associated with preparing a one-size-fits all PFML policy.
  • Where are your employees? When planning a parental leave policy, check to see if you have any employees working in any of the states subject to PFML laws. Multi-state employers, in particular, should take steps to ensure the laws and requirements in each of those states coincides with the parental leave policy.
  • PFML Requirements and Coordination with Other Laws: Many of these laws have different rules on eligibility, pay (most do not provide 100% salary replacement), duration, etc. and are offset by any state paid benefits the employee receives or eligible to receive. It is essential that you understand these laws and coordinate them with your parental leave policy and other leave laws so they, to the extent possible, run concurrently. Failure to do so may cause an unintended result such as leave stacking of paid parental leave, FMLA leave and then PFML leave!
  • Changing Workforce: Don’t forget remote employees moving between states. This is becoming more and more common due to the pandemic. Given the minimal eligibility requirements for PFML in some states, it is possible for an employee to be subject to PFML in one state but not another or even more confusing, more than one PFML state!

#4: Treating Parents Equally

  • “Moms” versus “Dads”? Who will be benefiting from this policy? Both parents must receive equal time for bonding leave and other benefits surrounding the new child. Similarly, consider removing gender-specific roles and identities in your parental leave policy. For example, instead of using terms such as “mom” and “dad,” use gender neutral terms such as “partner,” “birth parent,” etc.
    • You are likely aware of the highly publicized litigation involving parental leave policies such as the $1.1 million 2018 settlement against Estate Lauder, which we reported here, and the pending parental lawsuit against Jones Day, which can be found here! Keep the lessons learned from these cases in mind!
  • Bonding and New Child Benefits: It is extremely important that you provide new parents equal benefits and time off for bonding leave and other benefits related to the arrival of the new child such as modified work schedules and other flexible return to work benefits.
  • Caregiver Status: Also, do not make any assumptions based upon a parent’s status as a caregiver. See the recent EEOC guidance on this topic which can be found here and here.
  • Pregnancy-Related Medical Conditions: According to EEOC Guidance, a birth parent may receive additional leave relating to a disability or pregnancy-related medical condition. Remember though--this is not the same, as bonding leave!

#5: Review and Revise (or Scrap) Overlapping Policies

  • Review Current Policies: Make sure you carefully review all existing company policies (such as attendance policies, compensation polices, PTO/vacation policies, etc.) and any short-term disability plan to ensure coordination of benefits. You may need to revise or remove these policies once your parental leave policy is effective.

Before finalizing your parental leave policy, you should carefully consider at least these 5 issues and discuss with your employment law counsel, human resources, payroll, and tax advisor.

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.

DMEC COMPLIANCE CONFERENCE

Posted On March 17, 2022  

March 17, 2022

 

Good Things Come to Those Who Wait!

And this year’s DMEC Compliance Conference, starting this coming Monday March 21st, is no different! 

Our very own Marti Cardi, Vice President Product Compliance and Lana Rupprecht, Director, Product Compliance will be front and center on the last two days of the program (23rd and 24th).

Wednesday, March 23, 3:15pm
Marti and Lana will be hosting a Roundtable discussion “All Things Accommodation”.

Thursday, March 24, 8:30am
Marti and Lana are at it again with “The Provider Says No Overtime: ADA & FMLA Compliance in the Face of Scheduling Challenges”. Increasingly employees are notifying their employers of medical restrictions that preclude working overtime or limit work during normal shift hours.  In this session, Marti and Lana will identify FMLA and ADA issues employers face when overtime or scheduling becomes an issue such as calculating FMLA entitlement or determining whether overtime is an essential function under the ADA.  As an added bonus, they’re going to be taking you on a little tour of Los Angeles.  Prizes will be awarded (hint: study up on your Los Angeles hot spots!).

Thursday, March 24, 10:45am
Marti will be back as a panelist for an “Ask the Experts” session.  Here you can ask your most challenging questions and you get unfiltered answers. This interactive discussion allows you to have your specific “real-world” questions answered by specialists. Come prepared with your toughest questions and best of all, no billable hours are charged.

Finally, be sure and stop by our booth (214) during the week and chat with a Reliance Standard / Matrix representative.  It’s been too long, they would love to say hi!

VALENTINE’S DAY WORKPLACE HAPPENINGS

Posted On February 14, 2022  

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

February 14, 2022

 

Valentine’s Day isn’t usually a big event for leaves of absence, but join us as we take a look at 3 scenarios where the employers had their hands full. 

 

Flower Power

Miranda has numerous allergies for which she takes FMLA time periodically, especially in the Spring when plants are in bloom.  She previously submitted an FMLA certification stating she will need intermittent time off due to flare-ups of her allergies.  Miranda tells her supervisor (with plenty of notice and following her employer’s absence reporting procedures!) she won’t be at work on Valentine’s Day because she knows many co-workers will receive flowers from their loved ones and her allergies will flare up.  True to her word, Miranda misses work on February 14th.  A few days later one of Miranda’s coworkers tells their supervisor that she saw Miranda skiing at Vail on Valentine’s Day.  Should Miranda’s absence on February 14 be counted as FMLA time?

Answer:  Yes.  Miranda’s FMLA certification supports her need for intermittent time off due to flare-ups of her allergies.  And, the FMLA allows employees to take FMLA time to avoid having a flare-up of a serious health condition for which intermittent leave has been approved.  29 U.S.C. §825.102 [definition of “continuing treatment” (6)].

But what about Miranda’s ski day? Doesn’t that indicate FMLA misuse?  Not necessarily.  Skiing in the mountains in February is unlikely to expose Miranda to a high pollen count so her ski day is not inconsistent with the stated reason for her absence.  Happy schussing, Miranda! 

If HR is still concerned, best to talk tactfully with Miranda about the circumstances and also consider her past FMLA usage before just denying the leave.  What happened on the last Valentine's Day, for instance, or other days when coworkers received flowers at the workplace?

 

Cupid’s Challenge

Cupid is always busy the first two weeks of February, shooting lots of couples with love-laden arrows.  Last year, he was so much in demand he tore his rotator cuff and had to have surgery in April.  Months later Cupid’s shoulder is still giving him problems, but his off-season duties are not so strenuous, mostly completing reports on the prior season and scouting out candidates for next year.  Now here comes Valentine’s Day again, and Cupid is expected to work extra hours for a couple of weeks, shooting lots of arrows to keep up with business.  Cupid presents his employer (who might that be? Let’s call him “The Big Guy”) with a doctor’s note saying he can’t work overtime due to the strain on his injured shoulder.  No more than 8 hours per day, 5 days per week. What laws does The Big Guy need to consider?  And no, we’re not going to address child labor laws. 

Answer:  At least two laws are in play here (and maybe more depending on the state of Cupid’s employment):  the Family and Medical Leave Act and the Americans with Disabilities Act. 

Under the FMLA, Cupid can take time off to avoid mandatory overtime.  If he is FMLA eligible and has leave available, he can use FMLA to keep his hours in check.  The Big Guy just needs to be sure the mandatory overtime is also counted in calculating Cupid’s FMLA entitlement.  But what if recovery from surgery was a slow process and Cupid used up all his FMLA by July?  If Cupid’s employer (The Big Guy)  uses the rolling back leave year, he has no more FMLA entitlement until the next April, a year after the first day he took leave.

Enter the ADA.  In fact, the ADA has been running in the background all along, but FMLA leave trumped any ADA analysis as long as Cupid wanted a leave of absence.  Unlike the FMLA, there is no set limit on the amount of time off an employee can take under the ADA as long as it is reasonable and supported by a doctor’s opinion.  Now that Cupid’s FMLA entitlement is exhausted, the ADA steps up into place.  The fact that Cupid already used 12 weeks of leave for this shoulder condition is of little consequence to the ADA analysis (although it can be considered in determining what is a “reasonable” amount of total leave).    But The Big Guy has two defenses in an ADA situation that are not available under the FMLA: essential functions and undue hardship. 

First, The Big Guy has a pretty decent argument that overtime in the weeks leading up to Valentine’s Day is an essential function.  After all, it is important that Cupid make his appointed rounds and shoot his arrows into the unsuspecting targets.  No one else can do it!  And that leads to the other defense: undue hardship.  Without Cupid working overtime, many of the waiting couples will be missed; the day known for lovers will suffer.  Your classic example of operational difficulties!  The Big Guy can’t let that happen, and so – barring any other reasonable accommodation and what would that be? – Cupid’s request not to work overtime can be denied.  (Of course, that may be short-sighted by The Big Guy but maybe he knows something we don’t – like a successor to Cupid waiting in the clouds!)

NOTE:  Cupid’s situation just barely scratches the surface of issue relating to overtime and the FMLA and ADA. Join Marti and Lana at the DMEC Compliance Conference in Los Angeles March 21-24 when they will present an LA-themed session on overtime, the FMLA, and the ADA.  Featuring: “ Can You Name That LA Icon?”  Prizes (and FMLA/ADA knowledge) abound!  You can check it out and register here.

 

Pasta Problems

Tyler is approved for intermittent FMLA.   His certification says his gluten intolerance causes incapacitating flare-ups of bloating, headaches, and cramps when he eats gluten.   He is at work on Valentine’s Day but calls out the next two days because he is experiencing severe gluten symptoms.   Co-workers report seeing Tyler out with his finance on Valentine’s Night at a romantic Italian restaurant, sharing a plate of pasta à la Lady and the Tramp.  What should the employer do?

Answer: Tyler’s supervisor is advocating asking Tyler what he ordered in the restaurant, but what good will that really do?  You may just have to give this one to Tyler.  Many restaurants now offer gluten-free pasta and other options.  Maybe his flare-up is caused by some inadvertent gluten ingestion.  But so what if he did eat some gluten-laden pasta?  Can you deny FMLA because the employee voluntarily brought on the flare-up?  The answer is “no,” there is nothing in the FMLA that prevents legitimate leave usage even if the employee caused the serious health condition or a flare-up.  Nor can you require a doctor’s note for every intermittent absence.  29 U.S.C. § 825.308(b).  However, recertification might be appropriate if the employer believes that Tyler’s intentional pasta plate casts doubt upon his reason for the absence or the continuing validity of the certification.  29 U.S.C. § 825.308(c)(3).  But in that case, do talk with Tyler first to hear his side of the story. 

Finally, some food for thought . . . maybe Tyler should have given advance notice of his near-certain absence if he planned to eat pasta days in advance when he made the restaurant reservation and knew what the consequences of his date night would be!

 

Matrix Can Help!

At Matrix, we’re always assessing the application of leave and accommodation laws to the services we provide. Whether on this blog, at one of our quarterly compliance update webinars, or in compliance consultations with our client employers and business partners, you can count on Matrix to keep you updated on 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.

 

VACCINATION UPDATE: OSHA ETS WITHDRAWN BUT OSHSA IS STILL SEEKING A PERMANENT STANDARD

Posted On January 27, 2022  

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

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

January 27, 2022

 

You knew it was coming...another update on vaccination mandates.

As we previously informed you here, on January 13, 2022, the U.S. Supreme Court issued an Order staying the enforcement of the OSHA Emergency Temporary Standard (ETS). The OSHA ETS was the federal vaccination or testing requirement for private employers with 100 or more employees.

Although the stay was technically temporary, the U.S. Supreme Court found in its January 13 opinion, that the parties challenging the OSHA ETS would likely succeed – meaning OSHA's attempt to enforce the ETS, as written, would likely lose. The opinion can be found here.

On January 25, 2022, OSHA posted the following announcement:

The U.S. Department of Labor's Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective January 26, 2022.

Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.

OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

Further, OSHA submitted a formal withdrawal of the ETS which can be found here, officially stating that the ETS will serve as a proposed rule under the Administrative Procedure Act subject to the regular notice-and-comment rulemaking process previously underway. To the extent you want detailed information on this process, the federal government has a great resource explaining the administrative rule making process here.

What does all of this mean?

  • Effective January 26, 2022, OSHA is withdrawing the ETS as a temporary standard. That means the pending lawsuits challenging the ETS will stop.
  • The ETS will remain as a proposed rule subject to the regular formal rulemaking process. As we previously informed you here, the notice and comment period for the ETS as a final rule ended on January 19th. After the process is complete, a formal regulation may be published on or before May 5.
  • It is unknown exactly what the final rule will look like but given OSHA's strong position, it is reasonable to assume that certain work-safety-related elements of the OSHA ETS will remain in place. Stay tuned, and we will continue to keep you posted as this develops.
  • As we have told you in the past, employers who were subject to the OSHA ETS may still implement their own vaccination policy. Given OSHA's intention to move forward with a final rule, implementing some sort of vaccination and testing policy may keep employers ahead of the game, subject to state laws of course. See our blog about state laws here.

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.

NOW THAT THE OSHA ETS IS BLOCKED, BEWARE OF STATE LEGISLATION...

Posted On January 18, 2022  

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

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

January 18, 2022

 

As we reported on Friday, here, the U.S. Supreme Court blocked OSHA's enforcement of the Emergency Temporary Standard (ETS), which previously required many private employers with 100 or more employees to implement a vax or test policy. Employers may still opt to implement such a policy.

As promised, here is chart summarizing state rules which expand on the exemptions employers must make to vaccination policies.

NOTE: We also covered this during our Quarterly Compliance Update in the Docket last week! Stay tuned for a link to a recording and our materials.

ALABAMA

Effective: 11/5/2021

Exceptions

  • Medical Reasons identified by statute including prior COVID-19 diagnosis, severe allergic reaction, prior COVID-19 treatment, bleeding disorder, severely immunocompromised, or unable to take vaccine due to current health conditions or medications
  • Religious Beliefs

State Forms Required

  • If standard State Form is complete and submitted, employee exempt
  • Must be liberally construed in favor of employee

Legal Authority / Guidance

Additional Requirements

  • Includes administrative appeal procedure for employees if exemption request denied

ARKANSAS

Effective: 1/13/2022

Exceptions

  • Testing once a week
  • COVID-19 immunity provided twice a year

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • If unvaccinated employee is terminated and not offered testing, eligible for unemployment benefits

FLORIDA

Effective: 11/18/2021

Exceptions

  • Medical Reasons includes pregnancy or expectation of pregnancy
  • Religious reasons inquiries into the veracity of the employee’s religious beliefs prohibited
  • COVID-19 immunity from prior infection
  • Periodic testing
  • Employer-provided personal protective equipment (PPE)

State Forms Required

  • Must use actual or substantially similar forms created by the Florida Department of Health
  • If form submitted is complete, employer must permit exemption

Legal Authority / Guidance

Additional Requirements

  • Violations may be reported to the FL Attorney General who has authority to impose the following fines:
    • Up to $10,000 for private entities employing less than 100 people
    • Up to $50,000 for private entities employing 100 people or more

IOWA

Effective: 10/29/2021

Exceptions

  • Employee requests waiver and provides one of the following statements:
    • Vaccine would be injurious to employee’s (or individual residing with employee) health and well-being
    • Vaccine would conflict with religion

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • Employees discharged for refusing vaccine may be able to receive unemployment benefits

KANSAS

Effective: 11/23/2021

Exceptions

  • Employee submits written waiver stating vaccine would:
    • Endanger life or health of employee or an individual who resides with employee
    • Violate religious beliefs and employer may not inquire into sincerity of request

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • Terminated employee may file claim with secretary of labor
  • If secretary finds violation, KS Attorney General shall impose a civil penalty
    • Up to $10,000 per violation for employers with fewer than 100 employees or
    • Up to $50,000 per violation for employer with 100 or more employees
  • Employees terminated in violation of this law eligible for unemployment

NORTH DAKOTA

Effective: 11/15/2021

Exceptions

  • Certification that vaccine would endanger life or health of employee
  • Certification that vaccine is contrary to employee’s religious, philosophical, or moral beliefs
  • Prior immunity to COVID-19 permitted proof of COVID-19 antibodies is valid 6 months from date of test
  • Periodic testing

State Forms Required

  • No specific forms required

Legal Authority / Guidance

TEXAS

Effective: 10/11/2021

Exceptions

  • Personal conscience
  • Religious Belief
  • Medical Reasons
  • Prior recovery from COVID-19

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

UTAH

Effective: 11/16/2021

Exceptions

  • Health reasons
  • Religious beliefs
  • Personal beliefs

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

Additional Requirements

  • Prohibits an adverse action against an employee who claims relief
  • Prohibits employer from keeping or maintaining records or copies of employee's proof of vaccination

WEST VIRGINIA

Effective: 1/20/2022

Exceptions

  • Exempt if employee presents:
    • Notarized certification by Heath Care Provider stating medical exemption is required due to individual’s physical condition, a specific precaution or COVID-19 immunity
    • Notarized certification by employee that religious beliefs prevent employee from receiving COVID-19 vaccination

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

Additional Requirements

  • Employer may not discriminate or penalize employees providing for exercising exemption rights

In addition to the states identified above, Montana prohibits private employers from discriminating against employees based on vaccination status or having an immunity passport. Montana statute, effective May 7, 2021, and guidance can be found here and here.

Also, Tennessee legislation, effective November 12, 2021, prevents employers from requiring its employees to show proof of vaccination and prevents employers from taking adverse action against employees who object to receiving a COVID-19 vaccine for any reason. The statute can be found here.

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.

THE OSHA ETS IS BLOCKED BUT THE CMS IFR MOVES FORWARD

Posted On January 14, 2022  

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

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

January 14, 2022

 

During our January 11 Quarterly Compliance Update we reported that the Supreme Court of the United States (SCOTUS) heard oral arguments on January 7 on two federal vaccination mandates. Specifically, SCOTUS was asked to determine whether the OSHA Emergency Temporary Standard (ETS) and the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS) should be temporarily stayed (or stopped) pending further legal review.

On January 13, 2022, SCOTUS issued two decisions. It stayed the OSHA ETS but it lifted the injunctions on the CMS IFR so now, it may be enforced in all states. The two written opinions can be found here and are briefly discussed below.

OSHA ETS

  • The OSHA ETS, which required private employers with 100 or more employees to implement vaccination or weekly testing requirements for their employees, is temporarily stayed and cannot be enforced by OSHA at this time.
  • As we previously reported here, the ETS was issued by OSHA on November 5. Then, it was initially stayed by the 5th Circuit Court Appeals as we reported here and here.
  • After various cases challenging the ETS were consolidated before the 6th Circuit Court of Appeals, the 6th Circuit lifted the stay on December 17 and allowed the OSHA Rule to take effect as we reported here.
  • Now, SCOTUS has again stayed the OSHA ETS. The 6th Circuit Court of Appeals will be able to decide if the OSHA ETS should be enjoined permanently—and that decision is subject to review again—by SCOTUS.
  • OSHA issued a statement in response to the January 13 decision stating, in part:

“We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.

Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

CMS IFR

  • And then, the IFR, the government vaccination mandate issued by CMS may now be enforced in all 50 states.
  • As a refresher, the IFR is applicable to Medicare and Medicaid certified providers and suppliers and their health care workers working in hospitals, nursing homes and other health care facilities. More background can be found here and here.
  • SCOTUS concluded that the Secretary of Health and Human Services did not exceed statutory authority and stated, “in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

What does this mean for employers?

  • Employers who were subject to the OSHA ETS may still implement their own vaccination policy or they may choose not to at this time. Employers moving forward with a vaccination policy should be aware of state laws which will be discussed in a later blog.
  • Health care facilities and suppliers subject to the CMS IFR must comply with the mandate. CMS will likely update its guidance, but the current version showing compliance deadlines of January 27 and February 28 can be found here.
  • The SCOTUS January 13 decisions do not impact employers who are federal contractors and subcontractors. The vaccination mandate in EO 14042 is still stayed. See our prior blog here for more information.

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

Q4 - THE DOCKET

Posted On January 10, 2022  

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

January 10, 2022

 

Happy New Year!  But before we close the books on 2021, let’s take a last look at the fourth quarter of 2021, its legislative activities and go over what it means to you.  Compliance updates in the coming year show no sign of slowing down, but keep up with our webinar series, The Docket:

The fourth quarter review of All Things Absence!  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 Q4 webinar on January 11, 2022 at 2:00 PM ET.

YOUR 2021 WRAPPED: A YEAR IN LEAVE MANAGEMENT

Posted On January 03, 2022  

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

January 03, 2022

 

In December, social media was flooded with users sharing their 2021 Wrapped, exposing their eclectic tastes in music with the world. Apparently, I listen to movie soundtracks WAY more than I realized, but that’s not important right now. Immediately after, people on the internet started imagining what other apps’ “wrapped” offerings would look like. “In 2021, you attended 47 zoom meetings where you DID NOT unmute or turn on your camera once.” “Your top 5 cuisines in 2021 were Fast Food, Thai, Chinese, Italian, and Tacos.”

So sticking to our area of expertise in leave management, here is our 2021 Wrapped . There were 23 changes of note with regard to leaves of absence – paid and unpaid – or accommodations across 14 states and territories. For example, 2021 saw one Paid Family and Medical Leave (PFML) program go live, two states establish commissions to explore developing a PFML program, and one state delay the implementation of their PFML. Let’s do a quick review of these changes. We blogged about many of them during the year and provide links to those prior articles.

California

  • California Family Rights Act (CFRA) coverage was expanded by reducing the size of covered employers from 50 to 5, added qualifying exigencies related to covered active duty as a covered reason, and adding grandparent, grandchild, and sibling to covered relationships. Effective January 1, 2021. Read more about this update here.
  • Then California added parent-in-law as a CFRA covered relationship, effective January 1, 2022.

Connecticut

  • Connecticut PFML began collecting employee contributions in 2021 and will begin providing benefits on January 1, 2022. We’ve blogged about this many times and you can get a good overview here.
  • The state also made changes to the Connecticut Family and Medical Leave Act to align it (nearly) with the new PFML, effective January 1, 2022. We recently blogged about this here.

District of Columbia

  • Washington D.C. had a busy year for such a small territory! Remember, many of their employment-related laws apply only to the employees of private employers, not to federal or District employees.For starters, DC amended their Universal Paid Leave (a PFML program) to prohibit the reduction of fully insured short-term disability benefits based on actual or estimated paid leave benefits. Effective May 26, 2021. More about this here.
  • The District also expanded DC Universal Paid Leave by adding 2 weeks of prenatal leave and expanding medical leave from 2 weeks to 6 weeks. The entire leave bank is still capped at 10 weeks, but more changes may be coming.Effective October 1, 2021. Read more about this here.
  • Additionally, D.C. amended the Coronavirus Support Temporary Amendment Act of 2021 to remove the public health emergency as the trigger for provisions of the act. Effective October 27, 2021.
  • Finally, D.C. amended the Accrued Sick and Safe Leave Act of 2008 to provide paid time off for COVID vaccinations and recovery and amended the District of Columbia Family and Medical Leave Act of 1990 to extend and update existing unpaid leave available for COVID-related purposes. Effective November 18, 2021.

Illinois

  • Illinois expanded its Victims' Economic Security and Safety Act. The update added “crime of violence” as an additional leave reason, expanded the definition of “sexual violence” to include sexual assault, and expanded the definition of “family or household member” by adding parties to a civil union, grandparents, grandchildren, siblings, any other person related by a civil union, and any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee. Effective January 1, 2022. Here's our blog post about this update.

Indiana

  • Indiana was the latest state to pass a pregnancy accommodation law, although there’s not much meat on the bone. Indiana’s version allows employees to request a pregnancy accommodation, requires the employer to respond within a reasonable time, and is meant to be an extension of existing state and federal protections. But, it does not require an employer to grant accommodation or impose a duty on employer to accommodate unless required to do so under existing state or federal law. Effective July 1, 2021.

Kentucky

  • Kentucky expanded an existing law that required employers to provide adoptive parents at least 6 weeks of unpaid bonding leave.The new law requires at lest 6 weeks of leave or the same leave provided to birth parents, if greater.The law also changes the applicable age of the adopted child from under 7 to under 10. Effective June 28, 2021. You can read more about this update here.

Louisiana

  • Louisiana created a task force to explore establishing a PFML program. Effective June 7, 2021.

Maine

  • Maine added grandchild, or grandchild of a domestic partner, as a covered family relationship to the state’s job-protected (but unpaid) family and medical leave law. Effective June 29, 2021. More on this update here.
  • Maine also created a commission to develop a PFML program. Effective October 18, 2021.We’re watching this one closely and attending the commission’s periodic public meetings.

Massachusetts

  • Massachusetts began providing PFML benefits on January 1, 2021. Like Connecticut, we’ve posted many articles about Massachusetts PFML and if you need a refresher, you can get started here.

Missouri

  • Missouri created a requirement for employers to provide up to 2 weeks of unpaid leave, depending or employer size, to employees who are victims or whose family member is a victim of domestic violence, as well as to provide reasonable safety accommodations. The law went into effect August 28, 2021. More on this here.

New Hampshire

  • On July 6, 2021, New Hampshire established the Granite State Paid Family Leave Plan, effective January 1, 2023, and what a strange new model it is! More on this here, but be aware that a bill is pending to repeal this law. You can bet we’ll keep you posted.

New York

  • Giving employers lots of lead time to be ready, on November 1, 2021, New York added sibling as a covered relationship for New York Paid Family Leave, effective January 1, 2023.

Oregon

  • Oregon has delayed implementation of their PFML program.Contributions will now start January 1, 2023, and benefit payments will start September 1, 2023.
  • Oregon now exempts certain types of voluntary uniformed service from a five-year limit on eligibility for reemployment rights in private and public sectors. Effective September 25, 2021.
  • Finally, Oregon has expanded the Oregon Family Leave Act by expanding eligibility during a public health emergency, as well as adding care of a child in the event of school closure during a public health emergency as a leave reason under the “sick child” provisions of OFLA. Effective January 1, 2022.

Pennsylvania

  • Pennsylvania passed a law effective June 26, 2021, requiring employers to provide unpaid leave for covered employees for preparation of and recovery from an employee’s organ or tissue donation. But the catch is, “covered employees” are only those who are eligible for federal FMLA leave (which in almost all cases would provide leave for this situation anyway as an employee’s serious health condition). Additionally, the law doesn’t provided any additional time beyond what the employee has available under the FMLA.Effective June 26, 2021.

Rhode Island

  • Rhode Island has increased the duration of its paid family leave – which they call Temporary Caregiver Insurance – from 4 to 5 weeks on January 1, 2022, and to 6 weeks on January 1, 2023, subject to a maximum of 30 weeks leave and benefits combined under RI’s Temporary Disability Insurance and Temporary Caregiver Insurance. More about this here.

Washington

  • Washington state clarified the continuity of employees’ existing pre-2019 family and medical leave rights.Since Washington’s PFML replaced Washington’s unpaid Family Leave Act, the Washington legislature decided to clarify that the new PFML in no way undermines any rights or obligations under their legacy unpaid but job protected family and medical leave as to conduct, acts, or omissions occurring on or before December 31, 2019. Effective April 16, 2021. This update can be found at RCW 50A.05.125.
  • Washington state expanded PFML coverage by providing alternate eligibility tests for employees ineligible due to the pandemic. An employee filing for Washington PFML between January 1, 2021, and March 31, 2022, who does not meet the hours worked requirement due to reduced hours caused by the Pandemic can be eligible if they meet the 820 hours worked requirement under the new qualifying periods of the all 4 quarters of 2019; or the 2nd through 4th quarters of 2019 and 1st quarter of 2020. Effective April 21, 2021. More about this here.
  • Washington expanded coverage of its PFML program by adding to the definition of family member “any individual who regularly resides in the employee's home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care”. Effective July 25, 2021. More about this here.

Matrix can Help! Tracking leaves and PFML programs in this constantly changing environment can be challenging for employers. Matrix tracks state and federal legislative updates and reports on them on this blog. You can find an overview of state paid programs here. But tracking and reporting is just the beginning of what we do! In addition to leave management, short term disability, and management of accommodations under the Americans with Disabilities Act (ADA), Matrix offers PFML management in all states that allow private plans, and Reliance Standard offers fully insured plans where applicable. Contact your Matrix or Reliance Standard account manager or practice leader for more information, or send us a message at ping@matrixcos.com.

MASSACHUSETTS PFML TURNS 1!

Posted On December 22, 2021  

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

December 22, 2021

 

And even after almost a year of paying benefits, many issues are still murky at best regarding how to administer – or how the state will administer – the Massachusetts Paid Family and Medical Leave program (MA PFML).

But last week the Massachusetts Department of Family and Medical Leave gifted employers with some easy to digest guidance regarding a couple of those loose ends.

KNOCK! KNOCK!

Who’s there?

ORANGE.

Orange who?

ORANGE YOU GLAD THIS ISN’T ANOTHER POST

ABOUT VACCINE MANDATES ?!?

Well after all, vax issues are in the news and a big concern for all employers in one way or another. We’ve been posting frequently as developments warrant and it is possible – just maybe – that you have missed some of our alerts, what with life and work and the holidays and all. So here are links to our most recent vaccination-related posts and our last non-vax post about Connecticut.

The Osha Vaccination Mandate is Back! December 20, 2021

New York City's Guidance on Vaccination Mandates and Other Vaccination Mandate Litigation... December 16, 2021

Vaccination Mandates: More Court Activity December 10, 2021

Changes to Connecticut FMLA are Coming! Just When You Thought You Had CT Paid Leave Mastered... December 09, 2021

Claim Benefit Calculations in 2022

  • As a quick refresher, the MA PFML benefit rate is determined by considering both the employee’s individual average weekly wage and the SAWW. The SAWW increased from $1,084.31 for claims filed in 2021 to $1,694.24 for claims filed in2022. The guidance can be viewed here, but here are a few reminders and highlights: The employee’s individual average weekly wage, as well as the applicable SAWW is determined at the start of the employee’s benefit year (which starts the Sunday preceding the employee’s first date of leave), and remains the same for all claims in the following 52 weeks.
  • Open claims initiated in 2021 that continue into 2022 will continue to receive the same benefit rate through the sooner of the expiration of the claim or the expiration of the benefit year
  • New claims filed in 2022 during an open benefit year that began in 2021 will use the individual average weekly wage determined at the beginning of the benefit year; however, will use the SAWW rate from 2022 and will be subject to the 2022 benefit cap.

The Guidance also clarified an issue that has been the topic of much debate. It is now clear that a birth mother’s medical leave due to pregnancy/childbirth and time off to bond with the new child are two separate leave claims, and the SAWW will apply accordingly.

Claim Ownership when an Employer Switches PFML Plans

Additionally, the guidance includes direction concerning claim ownership and examples of scenarios that can arise when an employer switches from a private plan to a state plan, and vice versa, at different stages in the life of a claim. Essentially, employees are covered by the plan in effect at the time of the leave start. Consider the following:

  • If an employee files for a leave with the state prior to the effective date of a private plan, but that private plan becomes effective as to that employee prior to the leave start date, then the private plan owns the claim, and the state plan will reject coverage.
  • A timely filed extension is still considered part of the same claim even if the employer switches to another plan during the leave. Therefore, a leave that initiates under a private plan, and extends once the private plan is no longer in effect would still be owned by the private plan.
  • However, as previously mentioned, medical leave for birth and leave for bonding are considered two separate claims, even if the leave for bonding begins immediately after the leave for birth. As such, an employee who was covered by the state plan for her leave for birth may need to file a new claim for bonding leave if a private plan has become effective prior to the start of that leave.

Matrix can Help! Have you checked out our overview of state paid programs? You can find it here. Be it leave management under the Family and Medical Leave Act and state laws, short-term disability, compliance with the ADA and reasonable accommodations, or private plans for statutory benefits, our team of experienced Absence Management Specialists are here to help. Contact your Matrix or Reliance Standard account manager or practice leader for more information, or send us a message at ping@matrixcos.com.

THE OSHA VACCINATION MANDATE IS BACK!

Posted On December 20, 2021  

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

December 20, 2021

 

What a weekend!

Just as we were about to start writing a blog summarizing various state vaccination-related laws, we received word on late Friday evening, December 17, that the 6th Circuit Court of Appeals dissolved the prior stay on the OSHA Vaccination and Testing Emergency Temporary Standard (OSHA ETS).

In response, OSHA has announced that it will enforce the ETS but will not issue citations for noncompliance with any of its requirements until January 10 or after and will not issue citations for noncompliance with testing requirements until February 9.   

In other words, the OHSA ETS is back, the compliance deadlines are delayed, and employers subject to it need to comply.

Background on the OSHA ETS

As a refresher, the OSHA ETS, published November 5 in the Federal Register, requires private employers with 100 or more employees to implement vaccination or weekly testing requirements for their employeesThe previous deadline to do so was January 4, 2022; other requirements such as implementing mandatory policies in compliance with the ETS, masking, and temporary removal of COVID-positive employees from the workplace had a compliance deadline of December 6, 2021.

In November, the 5th Circuit Court of Appeals issued stays stopping implementation of the OSHA ETS and ordering that OSHA "take no steps to implement or enforce" the ETS "until further court order.” OSHA announced shortly thereafter that it was suspending implementation and enforcement of the ETS.

On November 16, the 6th Circuit Court of Appeals was tapped to decide all federal court challenges relating to the OSHA ETS, and the government filed a motion requesting that the 6th Circuit dissolve the stay.

Below are links to our prior blogs summarizing these developments and the OSHA ETS below (or just scroll down). 

November 5, 2021 Blog (matrix-radar.com)

November 8, 2021 Blog (matrix-radar.com)

November 15, 2021 Blog (matrix-radar.com)

November 18, 2021 Blog (matrix-radar.com)

December 1, 2021 Blog (matrix-radar.com)

December 10, 2021 Blog (matrix-radar.com)

December 16, 2021 Blog (matrix-radar.com)

December 17, 6th Circuit Opinion

As mentioned, the 6th Circuit Court of Appeals, on the evening of December 17, granted the government’s motion to dissolve the 5th Circuit’s stay of the OSHA ETS.

A three-judge panel conducted the review.  Two judges voted to dissolve the mandate and one dissented. You can read the entire opinion here. 

The court stated that OSHA has “long asserted its authority to protect workers against infectious disease.” The majority further stated:

Relying on employee declarations, other Petitioners claim that they will need to fire employees, suspend employees, or face employees who quit over the standard. These concerns fail to address the accommodations, variances, or the option to mask-and-test that the ETS offers. For example, employers that are confident that they can keep their employees safe using alternative measures can seek a variance from the standard …  Or employers may choose to comply with the standard by enforcing the mask-and-test component, which are entirely temporary in nature and do not create irreparable injuries. These provisions of the ETS undercut any claim of irreparable injury.

The 6th Circuit’s decision was appealed on an emergency basis to the U.S. Supreme Court.  We will keep you posted! 

OSHA Will Require Compliance but Deadlines are Delayed

OSHA updated it webpage over the weekend and the Department of Labor issued a news release stating:

To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Now What?

Employers, who have not done so already, should ramp up their efforts to comply with the OSHA ETS. Remember, and as we previously reported, the OSHA ETS applies to private employers with 100 or more employees.  More information can be found here.

The OSHA ETS does not apply to employers subject to theInterim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers.  It also does not apply to employers subject toExecutive Order (“EO”) 14042 applicable to federal contractors or subcontractors. The status of each can be found here and here

Also, make sure you confer with counsel, especially if you have employees located in a state that imposes limitations on vaccination mandates.

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.

 

NEW YORK CITY'S GUIDANCE ON VACCINATION MANDATES AND OTHER VACCINATION MANDATE LITIGATION...

Posted On December 16, 2021  

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

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

December 16, 2021

 

New York City (NYC) released its guidance, the Implementing Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination in the Workplace (“Order") and additional resources on its vaccination mandate for private businesses with workers in NYC. We previously discussed NYC’s announcement of this vaccination mandate here.

And in other news, we have litigation updates relating to the OSHA Emergency Temporary Standard (ETS) applicable to private employers with 100 or more employees and the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS) applicable to Medicare and Medicaid certified providers and suppliers.

So, read on.

NYC Guidance and NYC Commissioner of Health and Mental Hygiene’s Order

Here are important take aways for employers.

Reason for Implementation

According to the Order, it is “necessary for the health and safety of the City and its residents when urgent public health action is needed to protect the public health against an existing threat and a public health emergency has been declared.”

Businesses Subject to the Order

The Order only applies to workplaces in NYC. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.

Businesses that employ more than one worker in NYC or maintain or operate a workplace in NYC are covered by this Order. Individuals who are self-employed or sole proprietors are not covered by the Order unless they work at a workplace, or interact with other workers or the public in-person.

For more information see NYC’s FAQ which cover this very issue and provide specific examples.

Workers Subject to this Order

The Order covers full or part time employees, staff members, interns, volunteers, contractors, self-employed individuals, employers, or sole practitioners working in person in NYC at a workplace.

It does not apply to:

  • Remote workers
  • People who do not interact in-person with co-workers or the public
  • Individuals who enter the workplace for a quick and limited purpose
  • Non-NYC residents who are performing artists, college or professional athletes (or individuals accompanying them) not required to be vaccinated per the Key to NYC program

Key Requirements:

  • Proof of Vaccination: Beginning December 27, 2021, NYC workers must provide proof of at least one vaccination dose against COVID-19 before entering a workplace.

    They must provide proof of the second dose, if applicable, within 45 days.
  • Exclude Workers Not Vaccinated: NYC businesses must exclude from the workplace workers who have not provided proof of vaccination status, subject to medical or religious accommodation.
  • Maintain Records of Vaccinated Status. Businesses must verify workers’ proof of vaccination and maintain it in one of the following ways:
    • Keep a copy of each worker’s proof of vaccination;
    • Maintain a record of proof of vaccination showing the worker’s name, vaccination status, due date of second dose, if applicable; or
    • Check the proof of vaccination before permitting the worker into the workplace and keep a record.
    • For contractors, businesses are not required to keep a record of their vaccination status if the contractor’s employer confirms the contractor is vaccinated. In that case, the business must still maintain a record of its request and confirmation.
  • By December 27, 2021, employers must affirm on this form created by the NYC Department of Health and Mental Hygiene that it has complied with the NYC vaccination requirement and post in a conspicuous location.

Reasonable Accommodations

  • Individuals subject to the Order may request religious and/or medical accommodations to the vaccination requirement by December 27, 2021, which “begins the reasonable accommodation process.”
  • The FAQs clarify that workers may not qualify for an exemption based upon their social or political beliefs.
  • Businesses may allow those with a pending accommodation request to come into the workplace.
  • According to the reasonable accommodation guidance, employers may deny accommodations that impose an undue hardship based upon factors identified by EEOC guidance such as:
    • the nature and cost of the accommodation needed;
    • the overall financial resources of the facility making the reasonable accommodation;
    • the number of persons employed at this facility;
    • the effect on expenses and resources of the facility;
    • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
    • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
    • the impact of the accommodation on the operation of the facility.
  • NYC provides a checklist which is here to use when undertaking the reasonable accommodation process. According to the FAQs, “If an employer chooses to follow this checklist and keeps it on file, that will demonstrate that the employer handled the reasonable accommodation request appropriately.”
  • Businesses must keep records of reasonable accommodations which identify the date the accommodation was granted, the basis for doing so, and any supporting documentation provided in support of the requested accommodation.

Penalties for Noncompliance

Businesses out of compliance are subject to a fine of $1,000 and escalating penalties thereafter if violations persist.

Resources

The NYC guidance can be found at COVID-19: Vaccination Workplace Requirement - NYC Health

The implementing Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination in the Workplace, is published as well as helpful Frequently Asked Questions and Guidance on Accommodations.

Litigation Updates on Federal Vaccination Mandates

OSHA Emergency Temporary Standard (ETS)

  • As previously reported, we are waiting for the 6th Circuit Court of Appeals to decide the outcome of OSHA’s Motion to Dissolve the Stay of the OSHA ETS, which would require private employers with 100 or more employees to mandate COVID-19 vaccinations or weekly testing of employees.
  • So far, the 6th Circuit has denied the petition requesting that all 6th Circuit judges, rather than the typical panel of three judges, make the decision. The Court stated:

In a case as important, accelerated, and briefing-filled as this one, however, gathering all hands on deck would have strained the resources of the sixteen active judges, requiring each of us to review the voluminous record and the relevant underlying legal doctrines. What’s more, it would have done so for no discernable purpose: the case already sits before three thoughtful, independent judges on the panel who have spent the past weeks steeped in this matter. We properly leave the matter in their hands.

This court order can be found here. https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0283p-06.pdf.

CMS Vaccination Mandate

  • First, for background, the IFR—Interim Final Rule—is a government mandate issued by the Centers for Medicare and Medicaid Services (CMS) which requires health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated. Our prior discussion about the IFR can be found here.
  • On November 29th a federal district court in Missouri granted a preliminary injunction against the government temporarily stopping enforcement of the IFR in the following 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. See our summary of this here.
  • On November 30th, a federal district court in Louisiana granted a preliminary injunction against the government also temporarily stopping enforcement of the IFR. See our prior summary here. This lawsuit was brought against the government by 14 additional states Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia. The court applied this injunction nationwide except for the 10 states already subject to the November 29th injunction from the Eastern District of Missouri.
  • As a result, CMS stated on its FAQ guidance: “While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.”
  • But then on December 15th, the 5th Circuit Court of Appeals reviewed the November 30th decision of the federal district court in Louisiana and issued an order stating the lower court should have limited its stay to the 14 states that brought the action, and not nationwide. The 5th Circuit’s order can be found here.
  • What does that mean? We can assume that Medicare and Medicaid certified providers and suppliers not in the states identified above may be subject to the CMS IFR. We will need to see CMS’s position. Confer with your counsel and keep watching this blog as we are on this!

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.

VACCINATION MANDATES: MORE COURT ACTIVITY

Posted On December 10, 2021  

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

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

December 10, 2021

 

As we were writing our blog on the NYC vaccination mandate, a federal district court issued a nationwide injunction on the federal contractor COVID-19 vaccination mandate, Executive Order 14042.

Here is the rundown of that decision and additional vaccine-related court developments.

Nationwide Injunction on Federal Contractor Vaccine Mandate

What Happened?

  • A federal district court in Georgia (Southern District) issued an Order on December 7, 2021, granting a preliminary injunction against the government. Now, the government is prohibited from enforcing "the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America."

What does that mean?

  • The government is temporarily prohibited from enforcing the vaccine mandate under Executive Order (EO) 14042 against employers that are covered federal contractors and subcontractors. In other words, federal contractor employers do not have to comply with the vaccinate mandate required by EO 14042.
  • As we discussed in last week’s blog, a federal district court in Kentucky also prevented enforcement of the federal contractor vaccine mandate but at that time, the order was limited to the states of Kentucky, Ohio, and Tennessee. Now, the Georgia court order applies throughout the United States.

What is EO 14042?

  • EO 14042, issued on September 9, 2021, requires, among other things, that employees of certain federal contractors and subcontractors receive COVID-19 vaccinations, subject to medical or religious exemptions. The vaccination deadline was originally December 8th , but this was pushed back to January 18th. See our prior blogs here and here for more information.

Where is the decision?

  • The Southern District of Georgia court decision can be found here.

What should employers do?

  • Confer with counsel but this decision currently prohibits the federal government from enforcing the vaccine mandate described in EO 14042 against employers who are covered federal contractors and subcontractors. It does not prevent these employers from implementing their own mandatory vaccination policy, subject to state and local laws.

11th Circuit Denies Florida’s Appeal on CMS Mandate

What Happened?

  • On December 6, 2021, the 11th Circuit court of appeals denied the State of Florida’s request to enjoin the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS).

What does that mean?

  • As we previously discussed here, there is already a nationwide injunction preventing the government from enforcing the CMS healthcare COVID-19 vaccine mandate. Therefore, right now, this decision has no practical effect for employers. Why are we talking about it? We wanted you to know that not all courts may agree on the outcome of these government vaccine mandates so employers should stay alert and be ready to comply if required!

What is the CMS IFR?

  • The IFR—Interim Final Rule – is a government mandate from CMS requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022—subject to medical or religious exemptions. Our prior blogs about the IFR are here and here.

Where is the decision?

  • The 11th circuit opinion can be found here.

What should employers do?

  • Employers subject to the IFR should confer with counsel on next steps. Again, nothing prohibits employers from implementing their own mandatory vaccination policy, subject to state and local laws.

6th Circuit Decision on OSHA’S Motion to Dissolve Stay Still Pending

After December 10, 2021, the Sixth Circuit Court of Appeals will decide the outcome of OSHA’s Motion to Dissolve the Stay of the OSHA vaccination mandate, which we reported here.

What Should Employers do?

  • The good news is that most employers, subject to state and local law, may, at the moment, implement their own vaccination policy or not—there is currently no federal mandate requiring them to do so. Specifically:
    • Employers that are federal contractors and subcontractors are not required to comply with the vaccination mandate in EO 14042.
    • Health care facilities and suppliers subject to the CMS IFR are not required to comply the mandate.
    • Private employers subject to the OSHA vaccination mandate are also not required to implement a mandatory vaccination policy.
  • Employers who have employees in New York City (NYC), please confer with counsel and see our blog about NYC’s vaccination mandate here.
  • All of these court decisions will likely be appealed, and the ultimate outcome is unknown. Meanwhile, more cities and states may follow the lead of NYC and implement additional vaccination mandates.

We will be monitoring and waiting. Stay tuned!

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.

CHANGES TO CONNECTICUT FMLA ARE COMING! JUST WHEN YOU THOUGHT YOU HAD CT PAID LEAVE MASTERED...

Posted On December 09, 2021  

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

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

December 09, 2021

 

January 1 is just around the corner and Connecticut employees will be eligible to receive Paid Family and Medical Leave (PFML) benefits. But that's not all! Many changes to the Connecticut Family and Medical Leave Act (CT FMLA) are also effective as of January 1, 2022. In all of the hullabaloo concerning CT private plan exemptions and collecting contributions, it is easy to overlook changes to CT FMLA but you do so at your peril!

The good news is that the changes were meant to make the CT FMLA align more closely with CT PFML. Remember, CT PFML is a pay benefit and is not job-protected. That job protection comes from the CT FMLA and a Connecticut law that provides leave for reasons related to family violence.

Wow, it's been a busy time for this blog! We've been posting fast and furiously regarding all the developments relating to COVID vaccination mandates or anti-mandates. (Is that a term?) But you know – those laws, executive orders, or what have you that prohibit or limit vaccination mandates. If this is of interest to you, just scroll down to review our many posts on the topic, starting back on November 5. Special thanks to Lana Rupprecht, our Director of Product Compliance, for giving up normal life to stay on top of this fast-moving topic!

Here we’ll highlight all the changes to CT FMLA effective January 1, 2022, and provide a few notes on comparison of the Connecticut FMLA and PFML laws. (And by the way, there are no changes to the family violence job protection law but the CT paid leave law was designed to align with it in all respects.)

Broader Coverage

  • Through December 31, 2021
    • Applies to employers with 75 or more employees
    • Employees become eligible after 12 months of service with the employer and having worked 1000 hours in the 12 months preceding the first day of leave
  • As of January 1, 2022
    • Apply to all employers who employ 1 or more Connecticut employees
    • Employees become eligible after 3 months of service

More Covered Relationships

  • Through December 31, 2021
    • Employee’s spouse; minor or disabled child; or parent
  • As of January 1, 2022
    • Employee’s spouse; child (regardless of age or disability; parent (now including in-laws); grandparent; grandchild; sibling; and any other “individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships”. Relationships are broadly defined to include individuals related through blood, marriage, or by adoption or foster placement.

Greater Total Leave Entitlement

  • Through December 31, 2021
    • 16 workweeks in a 24-month period
      • Co-employed spouses must share entitlement for birth, adoption, or care of a parent
    • 26 weeks for care of an ill or injured service member
  • As of January 1, 2022
    • 12 weeks in a 12-month period (so in effect, up to 24 weeks in a 24-month period of 2 leave years – plus the 2 weeks per year mentioned below for incapacity during pregnancy)
      • Co-employed spouses must share entitlement for birth, adoption, or care of all family members
    • An additional 2 weeks available for incapacity due to a serious health condition during pregnancy
      • The CT FMLA and PFML have identical language on this provision. And get this: Although the CT DOL has not yet spoken as to CT FMLA, the CT Paid Leave Authority takes the position that the extra 2 weeks are available for any incapacity during pregnancy, not just those related to or caused by the pregnancy.
    • 26 weeks for care of an ill or injured service member

The Connecticut Department of Labor recently issued guidance on how this transition will work for existing CT FMLA claims that cross over from 2021 into 2022; you can find it here (scroll down a little way – it’s in the body, not a link).

Reduced Employee Eligibility Requirements

  • Through December 31, 2021
    • 12 months of service with current employer plus 1000 hours worked in the 12 months prior to leave
  • As of January 1, 2022
    • 3 months of service with current employer

Eligibility for CT PFML is different. As of January 1, an employee only needs 3 months of service with the current employer to be eligible under the CT FMLA. On the other hand, to be eligible for the CT PFML, an employee must be currently employed, or employed in the last 12 weeks, and must have earned at least $2,325.00 in the employee’s highest quarter in the first 4 of the 5 most recent completed quarters. Eligibility is “portable” for PFML and can be established with an employer other than the current employer from whom leave is sought. Thus, it is possible, depending on the facts, that an employee may be eligible for job-protected leave but not pay benefits or vice versa.

Leave Reasons

Reasons for leave under the CT FMLA remain unchanged. An employee can take leave under the CT FMLA for his own serious health condition; for organ or bone marrow donation; to care for a family member with a serious health condition; for bonding with a new child; due to military exigencies relating to a family member’s call or order to active duty in the U.S. Armed Forces; and to care for a servicemember with a serious illness or injury incurred in the line of duty. These leave reasons are all covered under CT PFML as well, although the leave entitlement under CT FMLA for care of an ill or injured servicemember is 26 weeks, while under CT PFML it is only 12 weeks of benefits.

In addition, under a separate Connecticut statute, employees can take job-protected leave for up to 12 days for reasons related to being a victim of family violence. This is also a covered reason for 12 days of pay benefits under Connecticut PFML.

Sharing Leave Entitlement

  • Through December 31, 2021
    • Co-employed spouses must share leave entitlement for bonding with a new child or for care of a PARENT with a serious health condition
  • As of January 1, 2022
    • Co-employed spouses must share leave entitlement for bonding with a new child or for care of ANY COVERED FAMILY MEMBER with a serious health condition

But note that under CT PFML, each employee, even married co-employees, are entitled to their individual 12 weeks of pay benefits with no sharing.

Matrix Can Help!

States are always updating and expanding their leave laws. We’re always on the lookout for changes and new laws that impact the services we provide. Whether on this blog, at one of our quarterly compliance update webinars, or in compliance consultations with our client employers and business partners, you can count on Matrix to keep you updated on the latest developments in leave of absence, paid leave benefits, and ADA accommodations.

As mentioned above, the changes to the CT FMLA were intended to make the CT FMLA more compatible with CT PFML. However, there are still material differences and Matrix’s absence management services are ready to handle the changes and coordination of the Connecticut laws, the federal FMLA, and your company policies.

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.

VACCINATION MANDATES: NEW YORK CITY AND OTHER KEY VACCINATION LAWS

Posted On December 08, 2021  

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

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

December 07, 2021

 

New York City Vaccine Mandate for Private Businesses

What Happened?

Yesterday, New York City (NYC) announced a vaccination mandate applicable to private businesses with employees working in NYC. Here are the key points employers should know.

  • All private employers must require every NYC employee to have at least one dose of the COVID-19 vaccine by December 27th.
  • This vaccine requirement is applicable to all private employers with employees in NYC, regardless of the size of the business.
  • The mandate is based upon a directive from NYC Health Commissioner, Dr. Dave A. Chokshi.
  • Mayor de Blasio, stated in his announcement that vaccinations are the “central weapon in the war against COVID.”
  • The mayor also stated he wanted to take a preemptive strike in response to the presence of the Omicron variant and other factors such as colder weather and holiday events attributed to an ongoing rise in COVID-19 cases.
  • You can watch the complete announcement here.

Will there be Written Materials or Guidance?

The NYC news release summarizing the Mayor’s announcement can be found here. There are several unconfirmed questions at this point such as whether testing will be permitted as an alternative, whether remote workers are covered and the penalties for failing to comply with the mandate.

On December 15th, NYC will publish an “enforcement and reasonable accommodation guidance.”

The mayor further stated that NYC would be setting up a call center to answer questions and provide a strong outreach center to support impacted businesses.

Are Religious and/or Medical Exemptions Permitted Under the Mandate?

Employees may request religious and/or medical accommodations in accordance with federal, New York state and NYC law. Under the NYC Human Rights law, most employers must engage in a “cooperative dialogue” and good faith “written or oral dialogue” to discuss the employee’s accommodation needs. This NYC law requires employers to memorialize in writing whether any accommodation was granted or denied and provide a copy to the employee.

The law can be found here. Guidance on the NYC Human Rights laws is available here.

We will know more once the December 15th guidance is published. Meanwhile, here is the Key to NYC Pass guidance for employers. The Key to NYC Pass is a vaccine mandate currently applicable to NYC customers and workers using NYC indoor dining, fitness, and entertainment. This prior guidance may help employers predict the requirements and reasonable accommodations for the upcoming mandate.

What is Acceptable Proof of Vaccination?

According to the NYC news release, acceptable proof of vaccination includes a CDC issued vaccination card, the New York State Excelsior Pass, the Clear Health Pass, and the NYC COVID Safe App. Also, see the NYC guidance vaccine list here.

Other States with Vaccine Mandates

States such as CA, CO, CT, DE, HI, IL, KY, MA, ME, MN, MD, NC, NV, NJ, NM, NY, OR, PA, RI, VT, VA, WA, WI, and D.C. and several municipalities throughout the U.S. have implemented vaccine mandates for certain employees. Such mandates are generally limited to employees working in specific types of settings such as healthcare, nursing homes, schools, childcare facilities, or state or local government entities.

In September and October of 2021, NYC, through its Key to NYC Pass, implemented vaccine mandates for workers and customers ages 12 and up working or using indoor dining, fitness and entertainment venues.

NYC is now the first to impose vaccine mandates applicable to employees of all private businesses regardless of size and industry.

States with Restrictions on Vaccine Mandates

The following states currently allow additional exemptions to vaccine mandates other than those based upon medical or religious reasons. We previously discussed Florida’s new law here and will devote another blog discussing the specific statutes. For now, here is a list of these states with links to the applicable legal authority.

  • Alabama allows exemptions for prior COVID-19 infection. Bill Text: AL SB9 | 2021
  • Florida allows exemptions for prior COVID-19 infection, testing, or use of personal protective equipment. See our prior blog at 29-1 (matrix-radar.com)
  • Iowa allows medical and religious exemptions broader than federal law. Iowa Legislature
  • Kansas allows medical and religious exemptions broader than federal law. kslegislature.org
  • North Dakota allows exemptions if there are prior COVID-19 antibodies, periodic COVID-19 tests or sincerely held moral or philosophical beliefs. ENGROSSED House Bill No. 1511
  • Texas per EO, allows exemptions for prior COVID-19 infection. EO-GA-40
  • Utah allows exemptions for a “sincerely held personal belief.” utah.gov

As always, we will continue to keep you updated as we monitor these developments. And, our previous blogs on vaccination mandates can be found here, here , here, here and here – or just scroll down.

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.

ILLINOIS EXPANDS ITS DOMESTIC VIOLENCE LEAVE LAW EFFECTIVE JANUARY 1, 2022

Posted On December 01, 2021  

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

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

December 01, 2021

 

Would you like a break from all the updates on the vaccination mandates?

Well, here you go. This blog is devoted to discussing amendments to the Illinois Victims Economic Security and Safety Act (VESSA) taking effect in the New Year.

The law, which can be found here, currently permits employees working in Illinois who are victims of domestic or sexual violence or who have family or household members who are victims of such violence to take up to 12 weeks of unpaid leave per any 12 month period to seek medical help, legal assistance, counseling, safety planning, and other assistance.

More information about this law can be found in the table of domestic violence laws we created which can be found here. Also, check out Victims' Economic Security and Safety Act (VESSA) - Conciliation and Mediation Division (illinois.gov).

Effective January 1, 2022, the amended VESSA law:

  • Adds “crime of violence” as an additional leave reason.
    • Employees may take leave if they or their family or household members are victims of a “crime of violence” (in addition to domestic, sexual or gender violence already permitted).
    • “Crime of violence” is defined as homicide, sex offenses, bodily harm, harassment and obscene communication, terrorism and armed violence.
  • Expands definition of ”sexual violence” to include sexual assault.
  • Expands covered family and household members for whom the employee can take leave. Currently, a “family or household member” includes spouses, parents, children, persons related by blood or by present or prior marriage, persons who share a relationship through a son or daughter, and persons jointly residing in the same household. As of January 1, 2022, the definition of “family or household member” will be expanded further and will also include:
    • Parties to a civil union
    • Grandparents
    • Grandchildren
    • Siblings
    • Any other person related by civil union, or
    • Any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee
  • Adds consecutive leave in addition to previously permitted intermittent or reduced work schedule leave.
  • Modifies the Certification Process. Under the amendments, an employee may choose any one of the following documents in the employee’s possession, accompanied by the employee’s sworn statement, to support his or her leave request:
      • Documentation from the 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,
      • A police or court record, or
      • Other corroborating evidence
    • These categories were identified in the prior version of VESSA, but the amendments now specifically provide that the employee may choose which document to provide along with his or her sworn statement and clarifies that the employee provide if he or she is in possession of such a document.
    • Under the amendments, employers may not request or require submission of more than one document during the same 12-month period leave is requested or taken if the reason for leave is related to the same incident(s) of violence or the same perpetrator(s) of the violence.
  • Expands Nondiscrimination Provisions Against Perceived Victims. The amendments expand the discrimination prohibitions to include anyone who is perceived to be a victim or has a family or household member who is perceived to be a victim of domestic violence, sexual violence, gender violence or any other crime of violence.
  • Adds New Confidentiality Provisions. The amendments require that any information, documentation, records, corroborating evidence and the fact that the employee has requested or obtained an accommodation pursuant to VESSA be kept in the “strictest confidence” unless:
    1. The employee requests or consents to disclosures in writing; or
    2. Disclosure is required under applicable federal or state laws.

Pings for Employers

State laws that protect employees who themselves or whose family members are victims of domestic and similar crimes are proliferating. Employers should be aware of these protections and their various state obligations and take steps to ensure compliance. While Matrix will assist by managing an employee's need for time off, an employer's obligations don't stop there. We recommend:

  • Train your supervisors to be aware of these laws generally and to refer an employee with a possible need for leave or a job accommodation to Human Resources. You can use our table of domestic violence laws located here as a training resource.

To comply with the Illinois VESSA amendments as of January 1:

  • Be sure to revise policies and procedures to reflect the changes:
    • Employees may take leave for other "crimes of violence" in addition to domestic, sexual or gender violence for covered employees. Employees may take leave if their "family or household members" falls into the expanded definition.
  • Train Human Resources so they are aware that employees now have the option to select what categories of "Employee Documentation" they wish to provide to support a leave request, and that, the employer cannot require or request more than one document (plus the employee statement) in a 12-month period for the same incident(s) of violence or the same perpetrator(s) of the violence.
  • Take steps to keep separate and confidential information, documentation, records, or corroborating evidence provided by the employee in support of this leave request.
  • Remember, VESSA still entitles employees to reasonable work-related accommodations to address the needs of the victim(s). Accommodations may include, but are not limited to, an adjustment to the job structure, workplace facility, work requirements, or telephone number, seating assignment, or physical security of the work area. See DOL IL VESSA. Many other states have similar requirements in their domestic violence laws.

MATRIX CAN HELP! At Matrix we're always monitoring state legislatures to keep an eye on the state leave landscape. The Illinois VESSA amendments will be included in our suite of state leave of absence laws Matrix manages. 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.

VACCINATION MANDATES: MORE INJUNCTIONS – AND DOL EXTENDS NOTICE AND COMMENT PERIOD ON OSHA ETS

Posted On December 01, 2021  

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

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

December 01, 2021

 

As promised, we are continuing to monitor the developments on the vaccination mandate front. This continues to be a fluid and fast-paced situation. In fact, while we were drafting this blog, we had to revise twice to incorporate the new changes.

For background, our previous blogs on vaccination mandates can be found here, here, here and here.

Here is the current update as of right now.

Court Activity

CMS – IFR Temporarily Blocked Nationwide

  • What happened?
    • Quite a lot has happened and continues to happen!
    • First on Monday, November 29th, a federal district court in Missouri (Eastern District) granted a preliminary injunction against the government temporarily stopping enforcement of the Interim Final Rule("IFR") issued by the Centers for Medicare and Medicaid Services ("CMS") in the following 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
    • Then, on Tuesday, November 30th, another federal district court in Louisiana (Western District) granted a preliminary injunction brought by 14 additional states against the government restraining it from implementing the IFR.
      • The court applied this injunction nationwide except for the 10 states already subject to the November 29th Order from the Eastern District of Missouri. The court stated: "due to the nationwide scope of the CMS mandate, a nationwide injunction is necessary due to the need for uniformity."
  • What does this mean? This means that the CMS, according to this court order, is prohibited from enforcing its IFR – which includes mandatory vaccinations of covered health care workers against Medicare and Medicaid certified providers and suppliers nationwide. More to come on CMS's position in response.
  • What is the IFR? The IFR—Interim Final Rule—is a government mandate from CMS (defined above) requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022—subject to medical or religious exemptions. Our prior discussion about the IFR can be found here.
  • Where are the decisions?
    • The Eastern District of Missouri court decision issued on November 29th can be found here.
    • The Western District of Louisiana court decision issued on November 30th can be found here.
  • What should employers do?
    • Employers subject to the IFR should confer with counsel on next steps. These lower district court decisions will likely be appealed to a higher court, and probably ultimately, to the U.S. Supreme Court.
    • These decisions do not prohibit employers from implementing their own mandatory vaccination policy (subject to state law).

Federal Contractor Vaccine Mandate Blocked in 3 States

  • What happened? Also, on Tuesday, November 30th, a federal district court in Kentucky (Eastern District) granted a preliminary injunction against the government temporarily stopping enforcement of the vaccine mandate required for federal contractors and subcontractors in the states of Kentucky, Ohio and Tennessee.
  • What does this mean? This means that the government is temporarily prohibited from enforcing the vaccine mandate under Executive Order (EO) 14042 for federal contractors and subcontractors in all covered contracts in the states of Kentucky, Ohio and Tennessee.
  • What is EO 14042? EO 14042, issued on September 9, 2021, requires, among other things, that employees of certain federal contractors and subcontractors be vaccinated--subject to medical or religious exemptions. The vaccination deadline was originally December 8th but this was pushed back to January 18th. Our prior blogs describing the EO can be found here and here.
  • Where is the decision? The Eastern District of Kentucky court decision issued on November 30th can be found here.
  • What should employers do?
    • Employers subject to EO 14042 without covered contracts in the 3 states identified above are not likely subject to the court order but should check with counsel.
    • Employers subject to EO 14042 with covered contracts in the 3 states identified above, should confer with counsel on next steps.
    • Again, the court's decision does not prohibit employers from implementing their own mandatory vaccination policy (subject to state law).

OSHA ETS-Notice and Comment Period Extended

  • What happened?
    • On November 30th, the U.S. Department of Labor issued a News Release stating that the notice and comment period for OSHA ETS (the OSHA ETS is explained here, here, here and here) is extended from December 6, 2021 to January 19, 2022 so that "stakeholders may have additional time to review the ETS and collect information and data necessary for comment." This means that interested parties have more time to submit any written comments either supporting or opposing the OSHA ETS.

The DOL news release can be found here.

As previously reported, OSHA has temporarily stopped implementation and enforcement of the ETS until this is resolved in the courts.

Keep checking in with us on this fast-changing topic, and we will continue to keep you updated.

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

EVEN MORE VAX NEWS: FLORIDA’S RESTRICTIONS ON VACCINATION MANDATES

Posted On November 29, 2021  

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

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

November 24, 2021

 

On the same day we were preparing our blog discussing the status of federal vaccination mandates applicable to private employers, the state of Florida enacted its own law significantly restricting—but not prohibiting—Florida private employers’ ability to impose vaccination mandates. 

Here is a quick rundown of this law as it applies to private employers subject to this law.

NOTE: The law also contains provisions relating to public employers, including educational or government institutions, which are not covered here.

  • The law applies to full-time, part-time or “contract” employees.
  • Private employers may impose a COVID-19 vaccination mandate in the workplace but if they do so, they must permit employees to choose to be exempt for any one of the following reasons:
    • Medical reasons. The statute states this also includes pregnancy or expectation of pregnancy. The employee is required to submit a statement from a medical provider certifying the COVID-19 vaccination is not in the best medical interest of the employee.
    • Religious reasons. Employees may receive an exemption based on a sincerely held religious belief – BUT Inquiries into the veracity of the employee’s religious beliefs are prohibited according to the state’s suggested exemption form.
    • COVID-19 Immunity from Prior Infection. Employees will need to provide “competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.” 
    • Periodic testing. Employees must be permitted to opt-out of a private employer’s vaccination requirements through testing “at no cost to the employee.”
    • Use of employer-provided personal protective equipment (PPE).This applies to employees who present “an exemption statement indicating that the employee agrees to comply with the employer's reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons.”
  • Employers are required to use forms created by the Florida Department of Health with respect to each exemption or substantially similar forms. These forms can be found here.
  • If an employer receives a completed exemption form for any of the 5 reasons stated above, the employer must allow the employee to opt out of its mandatory vaccination policy.
  • There is no private right of action under this law, but employees may report violations to the Florida Department of Legal Affairs.
  • Violations for which complaints can be filed include: 1) not being offered an exemption, 2) being improperly denied an exemption, or 3) being terminated as a result of a vaccine mandate.
  • For nontermination violations, the employer must be notified of the violation and given an opportunity to cure.
  • If an employer improperly terminates an employee as a result of the vaccine mandate, the Florida Attorney General has the authority to impose the following fines:
    • Up to $10,000 for private entities employing less than 100 people
    • Up to $50,000 for private entities employing 100 people or more
  • **The Attorney General may not impose a fine on an employer that reinstates a terminated employee with back pay.
  • Finally, the law directs the Florida Department of Health, Department of Legal Affairs, and the Department of Economic Opportunity to develop emergency rules to implement the law, which are expected to be out on or before December 4th. Employers will hopefully receive more guidance from these rules.

Tips for Employers

  • The fate of the OSHA ETS is still undetermined. If you are a Florida employer subject to the OSHA ETS and this law, you should consult with your attorney on next steps.
  • Employers in Florida who are also 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 OR are federal contractors or subcontractors subject to Executive Order (“EO”) 14042 which we discussed here should consult with their attorney. To the extent there is a direct conflict, the IFR and CMS might preempt this Florida law.
  • Employers mandating vaccinations who are subject to this law should, if they have not already done so, implement a robust process on exemption requests.
  • This law does not prohibit a private employer subject to this law from imposing vaccination mandates but as noted above, it imposes additional requirements.

Also, just in case you missed our previous blogs we prepared on vaccination laws, they can be here, here, here and here.   And as always, we will continue to keep you posted on key developments in this area.

Additional Resources

Florida Statute: h0001Ber.docx (myfloridahouse.gov)

Florida Department of Health COVID-19 Vaccination Exemption Forms | Florida Department of Health (floridahealth.gov)

Matrix Can Help!

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