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 Estate Lauder, which we reported here, and the pending parental lawsuit against Jones Day, which can be found here! Keep the lessons learned from these cases in mind!
  • Bonding and New Child Benefits: It is extremely important that you provide new parents equal benefits and time off for bonding leave and other benefits related to the arrival of the new child such as modified work schedules and other flexible return to work benefits.
  • Caregiver Status: Also, do not make any assumptions based upon a parent’s status as a caregiver. See the recent EEOC guidance on this topic which can be found here and here.
  • Pregnancy-Related Medical Conditions: According to EEOC Guidance, a birth parent may receive additional leave relating to a disability or pregnancy-related medical condition. Remember though--this is not the same, as bonding leave!

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

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

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

Matrix Can Help!

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

DMEC COMPLIANCE CONFERENCE

Posted On March 17, 2022  

March 17, 2022

 

Good Things Come to Those Who Wait!

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

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

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

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

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

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

VALENTINE’S DAY WORKPLACE HAPPENINGS

Posted On February 14, 2022  

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

February 14, 2022

 

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

 

Flower Power

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

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

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

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

 

Cupid’s Challenge

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

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

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

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

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

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

 

Pasta Problems

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

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

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

 

Matrix Can Help!

At Matrix, we’re always assessing the application of leave and accommodation laws to the services we provide. Whether on this blog, at one of our quarterly compliance update webinars, or in compliance consultations with our client employers and business partners, you can count on Matrix to keep you updated on the latest developments in leave of absence, paid leave benefits, and ADA accommodations.  Contact your Matrix or Reliance Standard account manager, or one of our regional practice leaders for more information or send us a message at ping@matrixcos.com.

 

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

Posted On January 27, 2022  

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

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

January 27, 2022

 

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

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

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

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

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

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

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

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

What does all of this mean?

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

Matrix Can Help!

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

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

Posted On January 18, 2022  

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

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

January 18, 2022

 

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

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

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

ALABAMA

Effective: 11/5/2021

Exceptions

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

State Forms Required

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

Legal Authority / Guidance

Additional Requirements

  • Includes administrative appeal procedure for employees if exemption request denied

ARKANSAS

Effective: 1/13/2022

Exceptions

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

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

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

FLORIDA

Effective: 11/18/2021

Exceptions

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

State Forms Required

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

Legal Authority / Guidance

Additional Requirements

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

IOWA

Effective: 10/29/2021

Exceptions

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

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

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

KANSAS

Effective: 11/23/2021

Exceptions

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

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

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

NORTH DAKOTA

Effective: 11/15/2021

Exceptions

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

State Forms Required

  • No specific forms required

Legal Authority / Guidance

TEXAS

Effective: 10/11/2021

Exceptions

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

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

UTAH

Effective: 11/16/2021

Exceptions

  • Health reasons
  • Religious beliefs
  • Personal beliefs

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

Additional Requirements

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

WEST VIRGINIA

Effective: 1/20/2022

Exceptions

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

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

Additional Requirements

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

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

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

Matrix Can Help!

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

THE OSHA ETS IS BLOCKED BUT THE CMS IFR MOVES FORWARD

Posted On January 14, 2022  

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

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

January 14, 2022

 

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

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

OSHA ETS

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

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

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

CMS IFR

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

What does this mean for employers?

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

Matrix Can Help!

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

Q4 - THE DOCKET

Posted On January 10, 2022  

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

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

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

January 10, 2022

 

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

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

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

Click here to sign up for The Docket Q4 webinar on January 11, 2022 at 2:00 PM ET.

YOUR 2021 WRAPPED: A YEAR IN LEAVE MANAGEMENT

Posted On January 03, 2022  

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

January 03, 2022

 

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

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

California

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

Connecticut

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

District of Columbia

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

Illinois

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

Indiana

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

Kentucky

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

Louisiana

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

Maine

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

Massachusetts

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

Missouri

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

New Hampshire

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

New York

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

Oregon

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

Pennsylvania

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

Rhode Island

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

Washington

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

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

MASSACHUSETTS PFML TURNS 1!

Posted On December 22, 2021  

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

December 22, 2021

 

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

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

KNOCK! KNOCK!

Who’s there?

ORANGE.

Orange who?

ORANGE YOU GLAD THIS ISN’T ANOTHER POST

ABOUT VACCINE MANDATES ?!?

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

The Osha Vaccination Mandate is Back! December 20, 2021

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

Vaccination Mandates: More Court Activity December 10, 2021

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

Claim Benefit Calculations in 2022

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

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

Claim Ownership when an Employer Switches PFML Plans

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

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

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

THE OSHA VACCINATION MANDATE IS BACK!

Posted On December 20, 2021  

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

December 20, 2021

 

What a weekend!

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

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

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

Background on the OSHA ETS

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

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

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

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

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

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

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

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

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

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

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

December 17, 6th Circuit Opinion

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

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

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

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

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

OSHA Will Require Compliance but Deadlines are Delayed

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

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

Now What?

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

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

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

Matrix Can Help!

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

 

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

Posted On December 16, 2021  

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

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

December 16, 2021

 

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

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

So, read on.

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

Here are important take aways for employers.

Reason for Implementation

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

Businesses Subject to the Order

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

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

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

Workers Subject to this Order

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

It does not apply to:

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

Key Requirements:

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

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

Reasonable Accommodations

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

Penalties for Noncompliance

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

Resources

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

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

Litigation Updates on Federal Vaccination Mandates

OSHA Emergency Temporary Standard (ETS)

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

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

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

CMS Vaccination Mandate

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

Matrix Can Help!

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

VACCINATION MANDATES: MORE COURT ACTIVITY

Posted On December 10, 2021  

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

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

December 10, 2021

 

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

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

Nationwide Injunction on Federal Contractor Vaccine Mandate

What Happened?

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

What does that mean?

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

What is EO 14042?

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

Where is the decision?

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

What should employers do?

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

11th Circuit Denies Florida’s Appeal on CMS Mandate

What Happened?

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

What does that mean?

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

What is the CMS IFR?

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

Where is the decision?

  • The 11th circuit opinion can be found here.

What should employers do?

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

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

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

What Should Employers do?

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

We will be monitoring and waiting. Stay tuned!

Matrix Can Help!

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