TRUE FMLA STORIES FROM RECENT COURT OPINIONS

Posted On September 07, 2021  

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

September 07, 2021

 

Tuesday, September 14 | 12:00 pm ET

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

 

This session qualifies for the following CEUs:

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

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

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

Posted On August 23, 2021  

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

August 23, 2021

 

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

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

Key provisions of the Missouri law are as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted On August 10, 2021  

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

August 10, 2021

 

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

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

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

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

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

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

 

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

STAY IN THE KNOW WITH OUR NEW QUARTERLY COMPLIANCE WEBINARS!

Posted On July 19, 2021  

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

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

July 19, 2021

 

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

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

 

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

 

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

 

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

Posted On July 06, 2021  

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

July 06, 2021

 

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

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

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

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

Covered Employers and Employees

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

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

Individual employees can opt in to the Plan if:

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

Benefits

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

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

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

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

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

Funding

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

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

Tax Credit

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

Employee Eligibility

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

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

Job Protection

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

Effective Dates

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

What We Don’t Know

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

Matrix Can Help!

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