OCTOBER: NATIONAL DOMESTIC VIOLENCE AWARENESS MONTH

Posted On October 20, 2021  

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

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

October 20, 2021

 

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

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

Leave Laws Protecting Domestic Violence Victims

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

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

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

How to stay on top of this Information

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

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

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

STAY IN THE KNOW WITH OUR QUARTERLY COMPLIANCE WEBINARS!

Posted On October 08, 2021  

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

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

& Armando Rodriguez, JD - Compliance Attorney, Compliance And Legal Department

October 08, 2021

 

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

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

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

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

TRUE FMLA STORIES FROM RECENT COURT OPINIONS – THE FAQS

Posted On October 04, 2021  

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

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

October 04, 2021

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pings for Employers

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

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

Additional Questions?

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

Matrix Can Help!

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

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

Posted On September 27, 2021  

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

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

September 27, 2021

 

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

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

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

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

First up:  No UPL offsets for insured STD policies. 

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

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

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

    Next:  The UPL (Paid Leave) Changes.

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

    Pre-natal Leave Added.

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

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

    Progressive Annual Expansions of Leave.

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

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

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

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

    Finally:  Changes Impacting D.C.’s FMLA

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

Universal Paid Leave Amendment Act Resources

Universal Paid Leave Amendment Act of 2016

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

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

Paid leave regulations:

D.C. Office of Paid Family Leave

Department of Employment Services

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

TRUE FMLA STORIES FROM RECENT COURT OPINIONS

Posted On September 07, 2021  

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

September 07, 2021

 

Tuesday, September 14 | 12:00 pm ET

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

 

This session qualifies for the following CEUs:

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

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