LOOK OUT EMPLOYERS! FACEBOOK MESSENGER MAY BE SUFFICIENT NOTICE UNDER THE FMLA

Posted On September 21, 2022  

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

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

September 21, 2022

 

Imagine this: Your employee Kasey misses several days of work due to a recurring infection related to an emergency appendectomy. Your policy, which is provided to all employees, requires Kasey to call in on a specific phone line at least 30 minutes before a shift if going to be tardy or absent. If an employee fails to call in and misses three consecutive shifts, you consider the employee to have abandoned his job.

Kasey fails to follow your policy and instead, corresponds with his manager via Facebook Messenger (yes, you read that correctly!) rather than using the required call-in procedure.

Initially, the manager accepts these communications when Kasey misses work due to the emergency nature of Kasey's condition that requires surgery, and even responds multiple times via Facebook Messenger. Kasey returns to work and is credited with FMLA leave. But then, Kasey goes out a few days later and continues to miss work due to complications, and he is readmitted to the hospital. Kasey never calls in on the required phone line but continues to correspond back and forth with his manager via Facebook Messenger. Kasey is terminated for job abandonment.

Does Kasey have "a case"?

This scenario is based on an actual case, Roberts v. Gestamp West Virginia, LLC (4th Cir. August 15, 2022). Kasey's claim turned on whether he provided his employer with adequate notice of his need for leave under the Family and Medical Leave Act (FMLA) via Facebook Messaging.

Any guesses how this turned out? The lower court agreed with the employer. It referred to the FMLA regulations stating that Kasey did not use the "usual and customary" notice and procedural requirements for requesting leave under 29 CFR §825.303(c).

But, the appellate court disagreed. According to the appellate court, "usual and customary" are not limited to an employer's attendance policy. It could include "any method that an employer has by informal practice or course of dealing with the employee, regularly accepted, along with those in the employer's written attendance policy."

According to the appellate court, under these facts, a reasonable jury could conclude that the use of Facebook Messenger by Kasey and his manager established an additional "usual and customary" notice procedure under the FMLA because:

  • Kasey and his manager had a history and pattern of discussing Kasey's medical condition via Facebook Messenger including his hospital stays, his surgery and infection. Kasey's manager responded to Kasey's messages with follow up questions and asked for Kasey's expected return dates.
  • Kasey needed FMLA for two surgeries. For the first surgery, his manager accepted Kasey's communications via Facebook messenger, credited him with FMLA leave and did not discipline him for failing to use the call-in line.

    Although the employer stated it accepted Kasey's initial Facebook Messenger communications initially because of the emergency nature of the Kasey's first surgery, the appellate court noted that Kasey's subsequent absences involved similar circumstances.
  • Although Kasey had been disciplined a few months earlier for failing to use the call-in line for an unrelated absence, the court found that during the period related to his appendectomy, Kasey was not disciplined or asked to instead use the regular call-in line.
  • Bonus pointer! In this case, the employer's policy required the employee to call in at least 30 minutes before an absence. Under the FMLA (and many state leave laws) the employee must only call in "as soon as practicable" in the case of unforeseen absences. So be prepared to be flexible on the timing of the employee's notice of absence if there are extenuating circumstances. But even then, you can require the employee to use your company's "usual and customary" notice procedure unless extenuating circumstances (yes, again) prevents them from doing so.

Pings for employers

This case has lessons for employers far beyond just an employee's use of Facebook Messenger.

  • Do not communicate with your employees via Facebook Messenger, WhatsApp, text, or similar applications unless you are ok with accepting that method as adequate FMLA notice and/or notice for other absence reasons.
  • If an employee attempts to contact you to report an absence in a manner different from what is permitted under your policy, direct them to the policy and tell them they must follow the organization's call-in procedure. Train your supervisors on this point and apply the rule consistently!
  • No good deed goes unpunished! Don't make exceptions to your call-in rules, even if you think it's the right thing to do in a particular situation. It may preclude you from disciplining or dismissing an employee for later failing to follow policy.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and 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.

OREGON AND COLORADO PFML: SHIFTING SANDS

Posted On September 12, 2022  

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

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

& Rebecca Ford - Director, Strategy Product and Marketing

September 12, 2022

 

Employers are eager – shall we even say anxious? – for concrete information about the imminent paid family and medical leave programs in Oregon and Colorado, but with contribution effective dates and private plan deadlines only a few months away, are there enough details to satisfy them? Maybe not.

At Matrix and Reliance Standard, we have been diligently attending meetings with Oregon and Colorado officials responsible for developing, administering, and enforcing the programs, attending their webinars, and monitoring their websites. And despite the disclaimer above, we do have some information to share and help employers prepare.

But first everyone’s favorite: A legal disclaimer! What we will share is on shifting sands. Paid Leave Oregon (the name of that state’s administering agency) and the Colorado FAMLI Division (ditto) are woefully behind on developing regulations, which put the meat on the bones of the PFML statutes. Without completed and finalized regulations, we have the skeleton but few details. (OK, getting kind of ghoulish here, but Halloween isn’t too far off!) Now in fairness, Oregon is farther along than Colorado and they should be, as they bought themselves an extra year over the original effective dates to implement their program. But even Oregon gives shifting answers to questions in successive public Q&A sessions. So what we present below is based on the most current info available to us at time of writing.

GOOD NEWS! Matrix and Reliance Standard will present an Oregon/Colorado PFML update webinar on October 11, 2022. Watch this space for a link to register in the near future or contact your Matrix or Reliance Standard account manager for details.

In the meantime, you can play catch-up by watching our July 12 OR/CO PFML webinar – JUST REMEMBER, a lot has changed since then. See the legal disclaimer above!

COLORADO FAMILY AND MEDICAL LEAVE INSURANCE ACT – “FAMLI”

Colorado FAMLI website: Family and Medical Leave Insurance (colorado.gov)

Administration: Division of Family and Medical Leave Insurance

Check here for more details: Statutory Disability and Paid Family Leave Laws

Basic Colorado Refresher

Contributions/Premiums:

  • January 1, 2023: ALL employers must start withholding from employee paychecks (if the employer is not going to fund the full program cost itself) and submit the contributions to the state. See below for
  • Employee/employer contributions due to the FAMLI Division within 30 days after end of each quarter (e.g., first contribution payments due by April 30, 2023)
  • Total contribution is 0.9% of each employee’s wages up to a cap that follows the federal Social Security tax ($147,000 in 2022; adjusted annually)
  • Employees pay one-half of the total (0.45%);
  • Employers with 10 or more employees pay one-half of the total (0.45%); employers with 9 or fewer employees are exempt from employer contributions

Benefits:

  • Available for leaves taken on or after January 1, 2024
  • Up to 90% of employee’s wages, according to a formula and subject to SSA limit
  • 2024 maximum of $1,100 per week; adjusted annually

Leave reasons:

  • Employee’s own serious health condition
  • Care of a family member with a serious health condition
  • Bonding with a new child
  • Qualifying military exigency
  • Safe leave

Duration:

  • 12 weeks for all leave reasons in an Application Year
  • Additional 4 weeks for a serious health condition related to pregnancy complications or childbirth complications

Regulations: [Final and draft rules are available here]

  • Rules relating to Premiums, Local Governments, and Benefits and Employer Participation are final. (NOTE: the Benefits/Employer Participation rules were finalized on August 26 and have some, shall we say “challenging”, provisions which we hope will undergo further revisions despite their final status.
  • Draft rules for private plans have been pre-released to a small group of industry colleagues for early comment (including yours truly). We’re not saying anything about details here, as it’s just too preliminary. Official draft rules for public comment are expected sometime in September.
  • Draft rules relating to coordination of benefits and amendments to prior rules are on the agenda; expected dates of publication of drafts unknown.

Employer Deadlines and Private Plans

Employer registration: The Division anticipates a 4th quarter 2022 soft launch of My FAMLI+ Employer where employers will be able to register, file applications for private plans, and pay quarterly employer/employee contributions to the Division.

Private Plans: Employers can opt to have a private plan rather than participating in the state FAMLI plan

  • Private plans must confer the same rights, protections and benefits provided by the state plan
  • Private plans must be approved by the Division; fully- insured plans must also be approved by the Division of Insurance
  • There will be an administrative fee for each private plan application; amount TBD
  • Separate business entities must each apply
  • Options:
    • Insured private plans: issued by an insurer approved by the state
    • Self-funded private plans: secured by a bond in an amount TBD
  • Refunds for any premiums paid in 2023 will be issued to employers with an approved private plan with an effective date on or before January 1, 2024
  • October 31, 2023: anticipated private plan filing deadline to get approval by December 31, 2023, and be eligible for a full refund of 2023 contributions paid

What Matrix and Reliance Standard are Doing

As we have done in other PFML states, we are:

  • Developing an insured private plan policy and a self-funded private plan template. These will be available following the release by the Division of the final private plan rules.
  • Developing an employer guide to private plans.

OREGON PAID FAMILY AND MEDICAL LEAVE – “PAID LEAVE OREGON”

Paid Leave Oregon websites: Paid Leave Oregon | Equivalent Plans

Administration: Paid Leave Oregon

Check here for more details: Statutory Disability and Paid Family Leave Laws

Basic Refresher

Contributions/Premiums:

  • January 1, 2023: All employers must start withholding from employee paychecks (if employer is not going to fund the full program cost itself); employee funds must be held in a separate account until paid to the Division or applied to the costs and benefits paid by an equivalent plan
  • The employer must submit employee/employer contributions to Paid Leave Oregon within 30 days after end of each quarter (e.g., first contribution payments due by April 30, 2023)
  • Total contribution is 1.0% of each employee’s wages up to a cap $132,900 (adjusted annually beginning in 2025)
  • Employees pay 60% of the total
  • Employers with 25 or more employees pay 40% of the total; employers with 24 or fewer employees are exempt from employer contributions

Benefits:

  • Available for leaves taken on or after September 3, 2023.
  • Up to 100% of employee’s wages, according to a formula and subject to annual limit
  • Maximum benefit of 120% of state average weekly wage

Leave Reasons:

  • Medical leave for employee’s own serious illness or injury
  • Family leave to care for a family member with a serious illness or injury or to bond with a new child
  • Safe leave for employees experiencing issues related to domestic violence, harassment, sexual assault, or stalking

Duration:

  • 12 paid weeks for all leave reasons in a benefit year
  • Additional 2 paid weeks for limitations related to an employee’s own pregnancy, childbirth, or a related medical condition, including but not limited to lactation
  • 4 additional weeks UNPAID for any reason covered by Oregon Family Leave Act (employee’s serious health condition, family member serious health condition, ill child, bonding, bereavement) that may be taken after the employee has exhausted the 12 weeks of paid leave.

Regulations: [Final and draft rules are available here]

  • Rule batches 1-4 are final, relating to Contributions, Small Employer, Self-Employed and Outreach, Equivalent Plans, and Benefits
  • Additional Batch 4 and 5 rules relating to Benefits, Contributions, and Appeals are still pending

Employer Deadlines and Equivalent Plans

Plan requirements: Employers can opt to have an equivalent plan (Oregon’s term for a private or voluntary plan) rather than participating in the state’s Paid Leave Oregon program.

  • Equivalent plans must provide benefits that are equal to or greater than the benefits the state plan offers and impose no additional conditions or restrictions on employees to use paid leave
  • Equivalent plans must be approved by Oregon Paid Leave
  • $250 fee for each equivalent plan application
  • Separate business entities must each apply
  • Options:
    • Insured equivalent plans: issued by an insurer approved by the state
    • Self-funded equivalent plans: must show proof of solvency by providing either:
      • Proof of sufficient assets or
      • A bond or an irrevocable letter of credit

Equivalent plans initial process:

  • Beginning September 6, 2022, employers opting for equivalent plans may follow one of two processes to be exempt from paying and remitting contribution payments beginning January 1, 2023:
    • Submit a complete equivalent plan application (including insurance policy template or self-funded plan) between September 6-November 30, 2022, to receive approval by December 31, 2022, OR
    • Follow the declaration of intent process:
      • File a declaration of intent to have an equivalent plan by November 30, 2022
      • File the complete equivalent plan application by May 31, 2023
  • Employers can file applications online through State of Oregon: Modernization - Frances Online; download and print applications (to submit by mail) from the Paid Leave website; or request applications by phone: 833-854-0166
  • Reapproval: Must reapply for equivalent plan approval annually, for three years. After three years, the equivalent plan will remain in place until withdrawn or terminated.

For more information: Equivalent Plans – Paid Leave Oregon

What Matrix and Reliance Standard are Doing:

As we have done in other PFML states, we are:

  • Developing an insured equivalent plan policy and a self-funded equivalent plan template. We anticipate having these available in September of 2022, once Paid Leave Oregon publishes its comprehensive Equivalent Plan Guide.
  • Developing an employer guide to private plans.

Matrix and Reliance Standard 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. Matrix and our sister company Reliance Standard offer self-funded and/or fully insured options for paid disability, medical, and family leave benefits in every state that allows private plans. If you have any questions, contact us through your Matrix or Reliance Standard sales or account manager, or at ping@matrixcos.com.

 

EMPLOYERS: UPDATE YOUR UNDERSTANDING OF THE INTERACTIVE PROCESS

Posted On August 16, 2022  

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

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

August 16, 2022

 

When an employee provides notice to his employer of a disability and expresses a desire for a reasonable accommodation, the employee and the employer must engage in good-faith communications—what we have termed the interactive process.

Once an employee triggers the interactive process, both the employee and the employer have an obligation to proceed in a reasonably interactive manner to determine the employee’s limitations and consider whether the accommodations he requests—or perhaps others that might surface during the interactive process—would enable the employee to return to work.

When a federal appellate court begins its opinion like this, it is probably not good news for the employer.

And in this instance, it was not. Kelly Dansie, a former on-call train conductor undergoing treatment for AIDS and testicular cancer, sued Union Pacific (UP) under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) after UP terminated his employment.

The trial court granted summary judgment for UP on the ADA claim (and also entered a judgment in favor of UP on a jury verdict on the FMLA claim). On appeal, the 10th Circuit found that there was sufficient evidence for a jury to find that UP violated the ADA. Click here to read the opinion!

The Facts

UP scheduled its conductors using an on-call system. Employees were expected to be available to work full time. UP’s policy provided for 2 written notices of attendance violations; thereafter, additional violations led to dismissal from employment.

Dansie temporarily lost his eligibility for FMLA due to time off during an earlier termination/unpaid suspension which was administratively overturned. As a result, he used company-designated personal days to cover work missed due to his illness and/or medical appointments.

After UP charged Dansie with violating its attendance policy, Dansie requested an ADA accommodation for excused absences until he qualified for the FMLA again.

Dansie and his physician, while completing the ADA forms, asked for but did not receive clarification on UP’s definition of “full-time employment”. Dansie requested about 5 days off each month, but his physician stated this was subject to change due to the nature of the illness.

UP denied Dansie’s ADA request because of the amount and unpredictability of the time off needed. When his absences continued, UP ultimately terminated Dansie for violating its attendance policy.

On the ADA claim, the lower court found for UP as a matter of law stating that Dansie’s accommodation was not reasonable, and UP had no duty to engage in the interactive process. Dansie appealed.

The Opinion

Interactive Process

The court first held that a reasonable jury could find UP failed to engage in the interactive process when determining whether a reasonable accommodation existed for Dansie. In doing so, it relied upon the following facts:

  • UP did not clarify its definition of “full time” employment despite Dansie’s requests to do so; in fact, email correspondence showed Dansie asking for guidance from UP and struggling to locate a corresponding written policy.
  • When Dansie told his supervisor he thought his accommodation was approved by UP, the supervisor just shrugged and walked away.
  • When Dansie tried to discuss medical issues with his supervisor via email, his supervisor responded that he only wanted to know what days Dansie was unable to work and not the details of his medical treatments.

The court recognized that neither the employer nor the employee can cut off the interactive process prematurely.

Reasonable Accommodation

On the issue as to whether a reasonable accommodation existed, the court found that a jury could conclude that Dansie’s request to take off 5 days a month until he qualified for FMLA was reasonable, and that permitting Dansie to use his accrued paid leave to cover these absences was also reasonable. Further, the court stated that UP should have considered reassignment to an available vacant position.

Pings for employers!

  • Don’t end the interactive process early. Make sure to explore other accommodations that may work under the circumstances. The interactive process is the best way to explore accommodation possibilities and come to a safe resolution – either a reasonable and effective accommodation or a conclusion that there is no option to help the employee perform the essential functions of the current position. Although this case is from the 10th Circuit (covering Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma), it provides an important lesson for employers in all states.
    And as the court points out, if an employer fails to engage in the interactive process, it will be difficult to resolve the case early and avoid a jury trial – a place you don’t want to be!
  • Communicate with your employees throughout the interactive process! That means answer their questions promptly and thoroughly, even if you think it is something the employee should know or something you believe you already answered!
  • Train your supervisors. It is true that many employers do not want their supervisors to discuss detailed medical information with their employees. But, in this case, the supervisor went too far by walking away from Dansie when he stated his accommodation was approved. A better response would be to inquire further, get more facts from Dansie and contact Human Resources. Reading between the lines of the court opinion, it appears the supervisor was possibly afraid to discuss the ADA or any medical issues with Dansie, especially in an email.
    The court also did not like how the supervisor told Dansie that he did not need to know about Dansie’s medical issues—just the days Dansie would not be working. Again, the supervisor was likely thinking he should not discuss detailed medical issues, especially in writing. A better response would be to involve Human Resources to discuss Dansie’s situation. Supervisors should use common sense and act in a compassionate manner when an employee brings up his or her medical needs and accommodation requests – but get help from the HR experts!
  • Consider Alternative Vacant Positions Before Termination. We cannot stress this enough. This case further supports the importance of considering the “accommodation of last resort” – assignment to an alternative vacant position.
  • Document, document, document! Keep a complete record of all communications, in writing or verbal, with the employee or his/her representatives about the accommodation discussions and efforts.

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.

IMPORTANT TAKEAWAYS FROM THE DOL AND EEOC AT THE AUGUST 2022 DMEC ANNUAL CONFERENCE!

Posted On August 04, 2022  

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

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

August 04, 2022

 

This week, while attending the 2022 Disability Management Employer Coalition (DMEC) Annual Conference, Marti Cardi had the honor of acting as one of the moderators (together with Marjory Robertson of Sun Life) for a panel that included Helen M. Applewhaite, Director of the FMLA Division for the U.S. Department of Labor and Rita Byrnes Kittle, Supervisory Trial Attorney from the Denver Field Office of the Equal Employment Opportunity Commission.

In this lively and interactive session, the panel covered various topics facing employers under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Here are some of the key takeaways!

Common Mistakes Employers Make

Applewhaite and Kittle identified common employer mistakes that cause easily avoided problems under the FMLA and ADA:

  • FMLA Mistake 1, Fail to Communicate

    Applewhaite reminded the attendees that employers should communicate with employees before, during, and after leave!

    • Employers are often overly cautious in communicating with employees about their FMLA leave. Talking with employees about problems during the certification process and return-to-work plans, as well as just checking in with employees while on leave, can help avoid miscommunication and can resolve FMLA leave issues that could be fixed easily.
    • Such actions are not only permissible under the FMLA, but personal contact with an employee out on leave will continue to engage the employee and help protect the employer in any later litigation.
  • FMLA Mistake 2, Inflexibility

    Employers who are inflexible on employee notice requirements and late certification submissions often find themselves in trouble. An example includes employers who strictly follow the 15-day return of certification requirement.

    • Again, communication is key. The employer should first find out from the employee why the certification is late.
    • Was it caused by circumstances beyond the employee’s control?
    • Employers who win FMLA lawsuits often go above and beyond just the minimum requirements set forth in the FMLA regulations to assist the employee in requesting leave and complying with all the requirements.
    • Successful employers also look beyond the rules alone and apply an element of fairness in analyzing a specific situation
  • ADA Mistake 1, Inflexibility

    Like the FMLA, inflexible employer policies which do not permit any exceptions will often run afoul of the ADA.

    • Kittle stressed that under the ADA, employers may be required to make exceptions to their policies and procedures as a reasonable accommodation.
  • ADA Mistake 2, Failing to Follow Up

    Kittle also reminded employers that once an accommodation is provided, that is not the end of the story.

    • Employers should periodically check in with the employee to evaluate how the accommodation is working, especially during the early days of the accommodation.
    • If circumstances change (for example, the employee’s impairment improves or declines), the employer may need to reevaluate the effectiveness of the accommodation through a new interactive process
  • ADA Mistake 3, Making Decisions based upon Stereotypes

    Employers may not make decisions based upon stereotypes or assumptions about an employee’s protected class, including a disability. Each employee’s situation must be analyzed on the particular facts.

    • Caregiver discrimination is a current example. Employers should not assume the mother is the caregiver and not the father.

COVID-19 Issues

  • Request to Work from Home as Accommodation

    The panel discussed how to handle accommodation requests from employees who want to continue to work from home when the rest of the workforce is returning to the office. Key points include:

    • An employer cannot decline to make an exception to a return-to-work policy as an accommodation on the basis that other employees will also want to work from home.
    • Undue hardship needs to be an actual disruption of operations based on facts, not something based upon fear or speculation as to how an accommodation might work out.
    • Employers may not discuss medical information or medical facts with other employees who inquire about why an employee appears to be treated more favorably.
    • Based on experience during the COVID-19 pandemic, employers may need to revisit whether working in the office in person is still an essential job function for a given position.
  • COVID-19 does not always equal Serious Health Condition

    • An employee who has COVID-19 must still meet the FMLA definition of a serious health condition to be entitled to FMLA leave and protections.

The Dobbs Decision and Aftermath

  • Request to Work from Home as Accommodation

    The panel discussed how the U.S. Supreme Court decision, Dobbs v. Jackson Women's Health Organization, impacts the FMLA and ADA.

    • Applewhaite reminded attendees that there are no changes to the FMLA requirements and the definition of serious health condition as a result of Dobbs. An employee who needs time off to obtain an abortion must still meet the definition of serious health condition.
    • The panel also agreed that time off for travel to a medical procedure would, in most instances, be covered by the FMLA.
    • As an example, the panel discussed how an employer who needs to travel out of state to receive special cancer treatment should not be treated any differently than an employee who needs to travel out of state to obtain an abortion (if the individual’s condition equates to a serious health condition) – and vice versa.
    • Kittle similarly stated that under the Pregnancy Discrimination Act, pregnancy cannot be treated differently from other medical conditions that are similar on the employee’s ability to work.

The panel provided several resources for employers who are wrestling with these issues, which can be found here.

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.

I’VE BEEN EVERYWHERE MAN...

Posted On August 01, 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

August 01, 2022

 

My goodness, has it been a month?  Sorry about that dear, readers – but as Johnny Cash alluded to in our title here; we’ve been a little busy.  And, it’s not letting up!  This week it’s off to Denver for the DMEC Annual Conference for two sessions (we’re at booth 409 stop by and say Hi!).

Be on the lookout in this blog for updates from all of the various legislative bodies as well as our takes on Adventures in Absence Management and Accommodations, but wanted to share with you some of what we’ve been doing over the past month.  Each of these webinars is available on demand with a click on the links below.

First, a session on “What we Know” as it relates to the impending rollout of both the Oregon and Colorado Paid Family and Medical Leave Plans.

Next, our July edition of “The Docket”, our quarterly webinar update on all things compliance – new leave-related legislation, EEOC and DOL activities, and those every-interesting court opinions.

And finally, and most urgent to all of you out there: a special session on the implications of the recent Supreme Court Ruling “Dobbs v. Jackson Women’s Health Organization”.  The U.S. Supreme Court’s decision in the Dobbs case, overruling Roe v. Wade, will have far-reaching implications for employers, employees and carriers—who face many questions about reproductive health benefits and services. Together with our special guest, Joy Napier-Joyce from Jackson Lewis, we explore:

  • Employer considerations
  • Group health plan implications
  • Travel benefit design
  • Optional travel benefits—
  • State law considerations
  • Other possible developments (congressional action, additional state laws, etc…)

Check back soon and we hope you enjoy the webinars here, but in the interim, back to the frequent flier miles!

ILLINOIS EXPANDS BEREAVEMENT LEAVE

Posted On June 30, 2022  

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

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

June 30, 2022

 

Did you know that Illinois, Oregon, and Washington are the only states that require employers to provide bereavement leave to their employees? Illinois's Child Bereavement leave has been in effect since 2016. Recently, Illinois enacted a law to expand coverage. While the expansion does not increase the entitlement available to Illinois employees, it does increase the reasons and covered relationships.

The Oregon bereavement leave is part of the state's unpaid but job protected Oregon Family Leave Act but is specifically excluded from the state's paid family and medical leave (PFML) program which will go into effect soon. We covered the new Washington bereavement leave in this blog post. It is essentially an additional leave reason under the Washington PFML program. You can learn more about these 2 state programs – and all other state paid leave programs – on our summary of Statutory Disability and Paid Family Leave Laws.

The Current Law

The current law, in effect through December 31, 2022, requires covered employers to provide eligible employees with up to two weeks (or ten workdays) of unpaid leave per death of a child, or up to 30 workdays in the event of the deaths of 3 or more children. The law states it does not create a right for an employee to take unpaid leave that exceeds unpaid leave allowed under the federal Family and Medical Leave Act (FMLA), meaning that an employee who has previously exhausted their FMLA entitlement is not eligible for Child Bereavement leave. However, because the FMLA is a federal law, and employer cannot deny FMLA leave due to an employee’s prior use of the Child Bereavement Law. Here’s more about current leave:

  • Applies to employers who employ 50 or more employees
  • Employees are eligible if they:
    • Have 1250 hours of service with the employer during the past 12 months
    • Have 12 months of service
    • Work at a worksite with at least 50 employees within 75 miles
  • Upon the death of a child:
    • To attend the funeral or alternative to a funeral
    • To make arrangements necessitated by the death of the child
    • To grieve the death of the child
  • Definition of “child” includes biological, adoptive, foster, step, legal ward, and in loco parentis; and has no age limit
  • Up to 2 weeks of unpaid leave per death of the child
    • Maximum of 6 weeks per 12-month period in the event of the death of 3 children
  • Each leave must be completed with 60 days of the employee receiving notice of the death of the child

So What’s Changing?

The expansion takes effect on January 1, 2023, and maintains the same framework of the prior law. Same rules for eligibility and entitlement applies, as well as how the law interacts with the FMLA. However, as mentioned above, the new law has expanded both leave reasons and covered relationships. Here’s more about the new law:

  • Applies to employers who employ 50 or more employees
  • Employees are eligible if they:
    • Have 1250 hours of service with the employer during the past 12 months
    • Have 12 months of service
    • Work at a worksite with at least 50 employees within 75 miles
  • Leave reasons include:
    • Miscarriage
    • Unsuccessful round of an assistive reproductive procedure
    • Failed adoption match or adoption contested by another party
    • Failed surrogacy agreement
    • Diagnosis that negatively impacts pregnancy or fertility
    • Stillbirth
    • Upon the death of a Family Member:
      • To attend the funeral or alternative to a funeral
      • To make arrangements necessitated by the death of the child
      • To grieve the death of the child
  • Family Member” is defined as an employee's child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent
    • Definition of “child” remains the same and includes biological, adoptive, foster, step, legal ward, and in loco parentis; and still has no age limit
    • “Domestic Partner” means the person recognized as the domestic partner of the employee under any domestic partnership or civil union law; or an unmarried adult person who is in a committed, personal relationship with the employee, who is not recognized as a domestic partner under any domestic partnership or civil union law, who is designated to the employee's employer as the employee's domestic partner, and who is not in such a relationship with any other person.
  • Up to 2 weeks of unpaid leave per event
    • Maximum of 6 weeks per 12-month period in the event of the death of family members
    • Each 2 weeks must be completed with 60 days of the employee receiving notice of the event

Under both the current law and the expanded version, the employer is entitled to reasonable documentation. For death of a child or family member, that could mean a death certificate, published obituary, or written verification of death, burial, or memorial service. For all other reasons, documentation completed by a health care provider, adoption or surrogacy agency, or other appropriate party certifying the leave. Additionally, employers are required to maintain health benefits during the leave and to restore employees to their position upon return from the leave.

Matrix Can Help!

Our team of Absence Management Specialists is well versed in all things leave. Be it bereavement, donor, or FMLA leave, Matrix is here to help you stay compliant with state and federal leave requirements. Matrix will be administering the expanded Illinois bereavement law as part of our suite of leave of absence management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

SIX MONTHS AFTER PAID LEAVE "GO LIVE," CONNECTICUT'S EMPLOYER NOTICE REQUIREMENT TAKES EFFECT

Posted On June 13, 2022  

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

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

June 13, 2022

 

UPDATE - June 17, 2022

Many employers have been concerned about the short period of time to comply with this notice requirement. Even though it has been in the Connecticut PFML statute for a couple of years, details about the notice requirement were just released this month.

Well good things DO happen sometimes! Since we originally posted this article the Connecticut Department of Labor has informally stated that employer compliance by July 31, 2022, will be sufficient. Moreover, the DOL indicated that if a complaint was filed against an employer based solely on the fact that notices were not issued by July 1, then no action would be taken by the CTDOL based solely on that fact. We assume that should also read, “as long as the employer complied by July 31."

Still, that’s not a lot of time, so don’t delay! Get the notice into your new hire paperwork by July 31, and it’s still a good idea to send the notice to ALL employees soon – by July 31 seems to be a good target!

Starting July 1, 2022, employers must provide employees with notice of their rights to Connecticut leave and pay benefits. This comes six months after Connecticut's Paid Family and Medical Leave (CT PFML) program went live and after the state's Family and Medical Leave Act (CT FMLA) was updated to better align with the CT PFML.

Why the delay? Who knows, but it was built that way in the statute. And make no mistake, the delay in the notice requirement does not excuse any employer noncompliance with these two complex laws in the interim.

This notice must include:

  • The employee's entitlement to leave under the CT FMLA, including leave for victims of domestic violence
  • The employee's right to file for payment under the CT PFML
  • That retaliation by the employer against the employee for requesting, applying for, or using CT FMLA is prohibited
  • The employee can file a complaint for any violations with the Labor Commissioner

Employers must provide their employees with the required notice at the time of hiring, and annually from then on. The Connecticut Department of Labor recently provided an optional prototype notice. You can find a copy here. You will notice the prototype contains significantly more information than the strict requirements of the statute listed above.

So exactly what must a Connecticut employer do as of July 1, 2022?

The statute does not contain any requirement to give the notice when an employee alerts the employer to the possible need for covered leave – nor is there a requirement to give all employees notice on or by July 1. Rather:

  • The notice is required for new employees hired on or after July 1, 2022, at the time of hire.
  • The notice is required "annually thereafter." This seems to create a gap allowing employers not to give any notice to employees hired before July 1.But we don't recommend adopting that interpretation. Clearly, the intent is to provide all employees periodic (annual) notice of their rights to job protected leave and pay benefits.

So we recommend:

  • Although notice is required, the prototype is not a required form for that notice; you can modify it to fit your culture or leave processes.
  • Review the prototype notice and if desired, add your company branding and any additional information you want employees to have relating to the Connecticut leave and pay benefits and your company policies. Look at the section entitled APPLYING FOR INCOME-REPLACEMENT BENEFITS UNDER CTPL on page 2:
    • If you have a private plan to provide the paid leave benefits, include information in the notice informing employees how to apply for benefits.
    • If you use the state plan, you can eliminate the general info in the prototype about private plans.
  • Once you have the form the way you want it (and ensure it is still compliant), include it in your new hire packet for employees hired on or after July 1, 2022.
  • Select a date (we recommend not too long after July 1) to provide the notice to all employees annually.
  • Optional actions to consider:
    • Include the notice in your employee handbook for Connecticut employees
    • Post the notice in your physical workplace(s) with other required employee notices and/or on your company intranet.

MATRIX CAN HELP!

Be it updates to state leave laws or the latest and greatest when it comes to new PFML programs, Matrix is here to help you stay on top of the changes. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

COMING SOON TO AN ALABAMA EMPLOYER NEAR YOU: ALABAMA PARENTAL LEAVE!

Posted On June 03, 2022  

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

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

June 03, 2022

 

Eligible Alabama employees will soon be able to take up to 12 weeks of parental leave to care for and bond with a newborn or newly placed adopted child. Like Delaware’s new family and medical leave insurance law, Alabama’s new parental leave law, “The Adoption Promotion Act,” (Senate Bill 31) borrows heavily from the federal Family and Medical Leave Act (FMLA). But, unlike Delaware’s law, Alabama’s new law is relatively straight forward.

 

Did you miss our post about the Healthy Delaware Families Act? You can read more about it here.

 

Here's a quick summary of The Adoption Promotion Act:

  • Applies to employers who employ 50 or more employees
  • Employees are eligible if they: (1) have been employed by the employer for at least 12 months; (2) have worked 1250 hours for the employer in the 12 consecutive months prior to using the leave; and (3) work at a worksite with at least 50 employees within 75 miles
  • Eligible employees may take up to 12 weeks of unpaid leave for the birth and care of a newborn, or care and bonding with a newly placed child, which runs concurrently with the FMLA
  • The leave must be taken within the first 12 months of the birth or placement of the child
  • Employees are expected to provide at least 30 days’ notice when the leave is foreseeable
  • Leave may not be taken intermittently unless otherwise agreed to by the employee and employer
  • Employers who provide paid leave to their employees for the birth of a child must also provide paid leave for the purpose of adoption of the same duration, for up to 2 weeks.
    • For example, an employer who provide 6 weeks of paid leave for birth of a child must now provide 2 weeks of paid leave for adoption
    • Conversely, an employer who provides 1 week of paid leave for birth must now provide 1 week of paid leave for adoption
  • Co-employed parents can each take the unpaid leave; an employer is only required to provide the paid leave required by this law to one of those employees
  • Effective July 1, 2022

The law provides that “requests for additional family leave due to the adoption of an ill child or a child with a disability shall be considered on the same basis as comparable cases of complications accompanying the birth of a child of an employee.” This statement is a bit vague and we are hoping for a little more guidance from the state.

Finally, the law specifies that employers are not required to provide employees with leave beyond the 12 weeks mandated by the federal FMLA.

Matrix can help!

Our team of absence management specialists understand the intersection between (and more often than not, the overlap of) state and federal leave laws, and how they interact with any company leave policies and benefits. If you have questions or want more information, reach out to your Matrix or Reliance Standard sales or account manager, or contact us at ping@matrixcos.com!

WHO'S ON FIRST: "WORK STATE" AND THE IMPACT ON PAID LEAVE BENEFITS

Posted On June 01, 2022  

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

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

June 01, 2022

 

Lately, employers are asking Matrix what state they should designate as the "work state" for their employees. Now, you may be asking yourself, "how many people really come to you and ask about work state?" The answer is: a lot! As the elusive Return To Office (or RTO) becomes more aspirational and less realistic, and more states are implementing paid family and medical leave programs (I'm looking at you, Maryland and Delaware!), asking exactly where your employees "work" is a legitimate and very real concern.

Background

An employee's "work state" can have implications for numerous state governmental programs. Think: unemployment benefits, wage & hour laws, income taxes, workers' compensation, and now paid family and medical leave. There may be more! This post is only discussing the impact of work state determination for the purpose of statutory disability and paid family leave benefits.

I'm sure you're all keenly aware that there are 8 states plus D.C. and Puerto Rico currently paying disability and/or paid family leave benefits. Four more states have passed PFML legislation and are in the implementation phase. If you're not on top of the details and need a refresher, you can review our statutory plans guide--always available to you and always up to date.

Each state is unique in its leave reasons, benefit duration, eligibility requirements, and other parameters. In addition, every state has its own definition of what it means to be employed within that state for the purpose of benefits eligibility. For most states, residency isn't even considered. In the states where it is considered, it's the last test, and always considered in combination with other factors.

Consider an employee who lives and works in New Jersey. Let's call him "Bob."

What About Bob?

Bob lives in New Jersey and works at a physical site in New Jersey. New Jersey uses the following definition for employee eligibility under its Temporary Disability Insurance benefit:

The term "employment" shall include an individual's entire service performed within or both within and without this State if:

(A) The service is localized in this State; or

(B) The service is not localized in any state but some of the service is performed in this State, and (i) the base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in this State; or (ii) the base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this State.

Ouch. But actually, this is easy so far. Since Bob is currently working at a site that is in New Jersey, he meets the definition of employment under the first part of the definition.

After a while, Bob gets a promotion to a position that requires frequent out-of-state travel. When Bob isn't traveling, he still reports to the local office in New Jersey. Additionally, the New Jersey office provides Bob with his assignments. In this arrangement, Bob would still meet the New Jersey definition of employment, as his base of operation is in New Jersey.

OK, still with me?

Eventually Bob tires of the frequent travel and decides to take a job in New York. Although he had initially planned on moving to New York, Bob ended up moving to Massachusetts to be closer to family. Almost immediately, Bob starts a hybrid schedule, working 3 days from home in Massachusetts and 2 days in person in New York. Additionally, Bob's work is assigned and directed by the New York office. New York uses the following definition:

The term "employment" includes an employee's entire service performed both within and without this state provided it is not localized in any state but some of the service is performed in this state, and

(1) the employee's base of operations is in this state; or

(2) if there is no base of operations in any state in which some part of the service is performed, the place from which such service is directed or controlled is in this state; or

(3) if the base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, the employee's residence is in this state.

Even though Bob is working three times a week out of his home in Massachusetts, he is considered a New York employee for the purpose of statutory benefits. This could even apply if Bob was working out of an RV while he spends a year birding.

But let's make things interesting. What if the New York office is not Bob's base of operations, and Bob's work is not controlled or directed by the New York office? Massachusetts' definition of employment includes this language:

The term "employment," except in such cases as the context of this chapter otherwise requires, shall include an individual's entire service, performed within, or both within and without the commonwealth, if--

the service is not localized in any state, but some part of the service is performed in the commonwealth and...the individual's base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in the commonwealth.

Ta da! State of residence finally comes into play! So Bob may meet the Massachusetts definition of employment.

Wrap Up

As you now see, determination of an employee's work state hinges on many details and is rarely as straightforward the employee's residence. Moreover, as mentioned above, designation of an employee's work state can have multiple implications. It is for these reasons--the complexity of the factual and legal analysis and the possibility of consequences to other employee rights and employer obligations--that when asked, Matrix respectfully declines to make this determination for our clients. Instead, be sure to consult with your own legal counsel prior to determining your employees' work state--which can be different for different employees!

But Matrix can help in other ways!!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. While we cannot determine your employees' work state, we can manage your employees' leaves of absence, statutory benefits, and leaves as an accommodation in accordance with your determination. In addition, we offer this compilation of the statutory definitions of "employment" and the like for each state that has paid disability and family leave benefits programs. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

NO CERTIFICATION? THEN, NO FMLA LEAVE FOR YOU!

Posted On May 24, 2022  

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

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

May 24, 2022

 

Employers often receive medical documentation from an employee to support an FMLA request, but no certification. What should an employer do in that situation?

Consider the following scenario.

Jake and Zyloc *

Jake (a fictional character) worked for Zyloc (a fictional company) as a financial analyst.

On May 11, Jake was in a car accident and as a result, he developed severe back and neck pain. For purposes of this scenario, let’s agree this would be considered a serious health condition as defined by the FMLA.

Jake requested FMLA on May 15. Zyloc sent all required FMLA notices and in doing so, required that Jake return a certification completed by his medical provider by June 7.

Over the period between May 15 through June 7, Jake did not submit a completed certification, or any certification at all. Instead, Jake sent Zyloc multiple copies of his voluminous medical records—dozens of pages. This included a “work status report” stating he could not work until July 30.

Zyloc repeatedly reminded Jake that it needed the completed certification, not just the medical records. But in response, Jake would simply resend the hundreds of pages of the same prior medical records and the same work status report.

Zyloc extended the June 7 deadline for Jake to return the certification to June 15 and again, informed Jake in writing and in oral communications that the medical records were not a substitute for the certification and that a completed certification must be provided by the deadline. Although Jake stated he would send the certification, he never did.

On July 20, Zyloc denied Jake’s FMLA and terminated Jake’s employment due to his unexcused absences.

Jake brings a lawsuit for FMLA interference. Does Zyloc have a good defense?

What the FMLA Regulations Say

First, let’s look at the FMLA regulations. If an employer requires a certification, the employee must provide the completed certification within 15 calendar days after the employer’s request. More than 15 days is permissible if: 1) the employer allows it; or 2) it is “not practicable under the particular circumstances” to return the certification within that time despite the employee’s “diligent, good faith efforts.” 29 C.F.R. § 825.305(b)

Employers must also notify the employee of the consequences for not returning the FMLA certification, which may include denial or delay of FMLA.

But the regulations provide that it is the employee's responsibility to provide the certification. If the employee never returns a certification, the leave is not FMLA-protected leave. 29 C.F.R. § 825.313(b).

Application to the Jake and Zyloc Scenario

Based upon the scenario described above, Zyloc is in a good position.

First, Zyloc provided the proper notices to Jake and initially gave him more than 15 days to return the certification. When it got the medical records, Zyloc informed Jake that the medical records were insufficient; it needed a certification.

Then, Zyloc then gave Jake an extension of time to submit the certification. When that deadline passed, Zyloc even waited a few days after the extended deadline passed before denying the leave.

But what about Jake’s submission of the multiple pages of medical records? Will a court find Zyloc’s objection to Jake’s presentation of the medical records instead of the completed certification to be “form over substance” and side with Jake? Probably not. In a similar situation, a court dismissed the case, stating with respect to the medical records: “Plaintiff’s position that he could simply foist a stack of documents onto the Defendant and expect Defendant to pick through the medical records and piece together the information needed to fulfil FMLA’s certification requirements is insufficient for this purpose and fails to meet the requirements of the FMLA regulations.”

Although employers cannot insist on a particular certification form and must accept a complete and sufficient medical certification regardless of the format, Jake, in this case, never provided a certification in any form with the required information.

Even though Zyloc initially provided Jake over 15 days to return the certification, Zyloc extended the deadline for the certification twice and repeatedly informed Jake (hopefully in writing as well as via phone) that the medical records were not a substitute for the certification. Also, Jake said he would send the certification but did not.

Pings for Employers

  • Communicate frequently and clearly: If necessary, inform employees repeatedly that they must provide a completed certification or leave will be denied. Doing so gives the employer a solid defense if the employee fails to meet his/her statutory obligations.
  • If an employee returns a certification late, ask the employee to explain why it was late and consider whether extenuating circumstances justify the delay.
  • Although not required, consider giving an employee at least one extension or a grace period after the 15 days expire. Courts and juries tend to have less sympathy for employees who failed to meet the extended deadline.
  • What if your employee submits more succinct medical records than the hundreds of pages Jake provided? You might consider accepting those records in lieu of a medical certification. An employer always has the ability to waive the certification requirement. But before you do that:
    • Carefully analyze whether the records contain all the information you are entitled to under the FMLA. Even extensive medical records might not address, for example, the frequency and duration of intermittent absences, the duration for a continuous leave, or the essential functions of the position the employee cannot perform (helpful with return to work efforts and ADA compliance!). Once a leave is approved, you are stuck with the information in the medical records standing in the place of a certification, and management of the leave might be difficult if challenges arise.
    • Recognize that you are setting a precedent and other employees might claim discrimination if not allowed to simply dump medical records on you.
    • Remember that the medical records might contain medical information not related to the reason for the FMLA leave request. Possession of such information is dangerous and you are better off returning the records without reviewing them or having them anywhere in the employee’s file.

Always consult with your employment law attorney before terminating an employee in these situations. The particular facts are important to determining the correct action.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services which will help insulate employers receiving the type of “medical records dump” described above. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

*The Jake and Zyloc Scenario above, is based, in part, upon Kuramoto v. Heart and Vascular Center of Arizona, PC, 2021 WL 2012668 (D. Ariz. 2021).

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 Estée 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.